By June 30, the U.S. Supreme Court will make “legal” decisions on whether corporations have religious rights, whether police officers can search the cellphones of people they have arrested without a warrant, and whether anti-abortion activists can protest as close to abortion clinics as they want to.
Altogether, the Supreme Court will make decisions on 17 cases in the next weeks, according to this excellent report by the Associated Press. The Court will also make decisions on recess presidential appointments, TV on the Internet, greenhouse gases, union fees, securities fraud, and “false” campaign claims.
I put the word legal in quotes in the first paragraph because I don’t believe that the U.S. Supreme Court makes legal decisions. I believe that Supreme Court judges essentially make their decisions based on political beliefs – and have had this belief since I wrote a 20-page paper on Supreme Court policy on the New Deal when I was in college.
Unfortunately, I also believe that the U.S. Supreme Court has become far more political in the 30 or so years since I wrote the report. Conservatives take the conservative position and liberals take the liberal position before the plaintiffs and defendants argue their case. Then, the conservatives and liberals look for rationales to justify their vote and decision, regardless of how twisted their rationale is.
Recently, the 9-member Court (which is pictured above; I don’t know why Ruth Bader Ginsburg is sitting so far away from the others; is she scared?) has often ruled 5-4 with the five conservatives outvoting the four liberals. That could change if the Democrats keep winning presidential and Senate elections, but right now we have a Court that believes that corporations are people, money is speech, and unlimited campaign contributions don’t have a corrosive effect on our political system.
I disagree so strongly with the Court’s recent decisions on Citizens United vs. Federal Election Commission (2010) and McCutcheon vs. Federal Election Commission (2014) that I have prepared a three-part investigative piece on campaign contributions. This article is essentially an introduction to that series, which will be run in the next couple of weeks, I hope.
In the meantime, here are some facts about the U.S. Supreme Court:
* Many judges call themselves strict constructionists or loose constructionists. Strict constructionists argue that Supreme Court decisions should be based on what is explicitly in the Constitution, while loose constructionists argue that the Constitution is a “living document” that should be interpreted to take into account the changes that have occurred in the United States since 1789.
* In the 1950s and 1960s, the Supreme Court often sided with the loose constructionists. Conservatives often derided these decisions as examples of judicial activism that were based on personal views. Liberals, though, argued that parts of the Constitution, including the First Amendment and the Fourteenth Amendment’s equal protection clause, should be broadly interpreted to protect the rights of minorities, criminal suspects, people who opposed governmental policies, and others.
* The decisions cited as examples of judicial activism include Brown vs. Board of Education (which made separate public schools for blacks and whites illegal), Griswold vs. Connecticut (which said that a law prohibiting the sale of contraceptives violated people’s right to privacy), Miranda vs. Arizona (which compelled police officers to inform suspects they had the right to remain silent and the right to an attorney), and Engel vs. Vitale (which outlawed government-directed prayer in public schools).
* In recent decades, liberals have accused conservative judges who said they were strict constructionists of being judicial activists who made political decisions. The most prominent cases were 5-4 decisions that made George W. Bush the president of the United States (Bush vs. Gore) and outlawed limits on political spending by corporations (Citizens United vs. FEC). The court’s five conservatives supported the more conservative Bush and the corporations, while the court’s four liberals dissented.
* In Bush vs. Gore, Judge Antonin Scalia ordered Florida to stop counting votes before the Court heard the case because the result could "threaten irreparable harm to petitioner Bush.” In the final decision, the conservative and liberal blocs reversed their long-standing views on states rights and the equal protection clause, according to an article in Time magazine entitled “Can the Court Recover.”
In my opinion, the U.S. Supreme Court has lost a lot of credibility because of the unending conservative vs. liberal split. I hope that someday we have judges who respect the people who make legal arguments in front of them by scrutinizing the specifics of the case and asking questions that will help them reach a legal rather than a political decision. Yes, I took a cheap shot at Clarence Thomas, but he deserves it.
Later this week: How one billionaire has corrupted the political process.
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