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L'America: What About the Supreme Court?

2014-07-01 13 min read marco

Today, liberals are up in arms all across America: in two opinions, the Supreme Court of the United States has established that (most) corporations can disregard the law for religious reasons; it also found against mandating agency fees to unions by non-unionized members.

Really, liberals have been up in arms against the current Supreme Court for a while. President Obama denounced several Supreme Court opinions, in particular Citizens United (on campaign finance). Ever more ancient is probably the most famous ruling (outside the United States): Bush v. Gore, which handed the presidency of the country to George W. Bush.

What Is the Supreme Court?

America’s Constitution knows of three branches of government: the executive, led by the President; the legislative, represented by Congress; and the judiciary, led by the Supreme Court. This is not a whole lot different from many other countries. A fundamental difference, though, is that America’s Supreme Court takes on both the role of ultimate appellate court and of constitutional court. Those two are commonly separated in other countries and co-equals.

The Supreme Court has complete freedom when it comes to deciding the cases before it. It can overrule any court in the land and its decisions are always final, with one important exception: the court may overrule itself whenever it sees fit. The Supreme Court also can find any act and any law unconstitutional, in whole or part. The only limits to its power are enumerated in the Constitution or are the consequence of its lack of enforcement ability.

The Supreme Court is currently composed of nine judges, called Justices. One of them, chosen by appointment, is the Chief Justice. All Justices are appointed for life. The only way a Justice can leave the court is by resignation, retirement (which comes with a pension), or impeachment. No Justice has ever been impeached (proceedings were started a few times, though). Retirement and resignation are more common, as is death while serving (which is what happened to the previous Chief Justice, William Rehnquist).

Who Chooses the Justices?

The United States Constitution states that Justices are selected by the President and confirmed by the Senate, as if they were regular members of the executive branch (which they obviously aren’t). While the confirmation process used to be fairly unanimous (with many justices receiving absolutely no “Nay” votes), things have changed at the end of the 20th century. Nowadays, the President will select a nominee, and the opposing party will try to find holes in the candidate’s resume.

The reason the process has become so contentious is that a Supreme Court Justiceship is the longest-term appointment possible at high office. While Presidents and Congress are gone within 8 years at most, a Justice can remain on the court for many decades. As a result, Justices tend to be picked relatively young (early 50s), which affords them about 3 decades on the court.

Several candidates for the court have not been confirmed by the Senate. The most famous case (in America) is that of Robert Bork, a conservative nominated by President Reagan to succeed a liberal. Bork had become infamous when he supported the Nixon White House during the Watergate scandal and was widely opposed for staunchly conservative views. The probably most famous case outside the United States, though, is that of Harriet Miers, whom President Bush nominated and who withdrew her candidacy after a firestorm of criticism from the left and right.

Presidents, on the other hand, have used the words litmus test to describe how they would pick candidates, or named other Justices who would inspire their choice.

Why Does It Matter So Much?

The Supreme Court has always been very important, of course. Currently, though, one branch of government is stalled: Congress is split between the Republican House and the Democratic Senate. The result is almost complete stand-still. Of course, lack of action from one branch increases the power and relevance of the other branches. On one hand, President Obama started ruling by decree, on the other the Supreme Court can issue rulings that suggest a legislative fix, a tongue-in-cheek way of having it their way.

In general, Congress can overrule the Supreme Court on matters of law. Unless an application of the Constitution underlies a ruling, Congress could just decide it doesn’t like a ruling and change things going forward. Even if it is the Constitution that informs a ruling, the country can still settle on a Constitutional Amendment. Several of the newer amendments have been results of court rulings.

The President, on the other hand, has no power to limit the Supreme Court. His or her involvement ends with the nomination. As such, a deadlocked Congress creates an all-powerful Supreme Court.

Some Notable Opinions

Marbury v. Madison: an incredibly important early decision. It featured some real life drama, with the Court having to decide if an appointment made by a previous President was valid under the next. It was all very Napoleonic times, with couriers shuttling back and forth and letters patent withheld. Alexandre Dumas would have appreciated.

The court applied here one of its favorite tricks: give the more powerful party (the President, in this case) what it wants, and take something valuable for yourself. The current Chief Justice, John Roberts, is a master at this tactic. in 1803, Marbury won the Supreme Court the right to extensive judicial review. While the Constitution is not explicit about it, from then on the Supreme Court would have supreme say over what acts of any branch of government are legal.

Texas v. White: the decision that ended the American Civil War. States are not allowed to unilaterally secede from the Union.

Wickard v. Filburn: one of the decisions that allowed the Commerce Clause of the Constitution to apply to only distantly related actions. Theoretically, the United States Constitution limits the scope of action of the Federal Government (including Congress). One of the enumerated powers is that to regulate commerce between the States. Since pretty much anything has an economic effect, the Supreme Court ruled that this anything can be regulated. Thus America now has a National Labor Relations Board, a Food and Drug Administration, a National Aeronautics and Space Administration, a National Park Service, and the like.

I should note that the U.S. Constitution has an amendment process that requires so many people to agree, it seems hard to pass any change that is not carried by popular sentiment. While prohibition of alcohol (which was very popular at the time) passed (and was subsequently repealed), an Equal Rights Amendment that would have enshrined equality between men and women never made it.

Dred Scott v. Sanford, Plessy v. Ferguson, Korematsu v. United States: three case that are so shameful to the court’s history, they are routinely recalled when it comes the dangers of decision in modern cases. In each of the three cases, the court ruled appallingly that race can be a determining factor in your civil rights. In Dred Scott, the court even ruled that a black person could not even be a citizen of the country. No wonder just mentioning the name makes a Justice shudder, and being called “a modern day Taney” (the Chief Justice at the time) is the judicial equivalent of being called a Hitler.

Griswold v. Connecticut: a landmark case that ruled the Constitution contains a right to privacy (although not explicitly stated) that protects (in this particular instance) married couples in their bedroom. The issue at the time was contraception, and a law (in Connecticut, you guessed it) that prohibited married couples from using any.

This is one of those moments when the Supreme Court does something odd: it created something incredibly powerful (the right to privacy) out of “thick air” in the furtherance of a private preference. The Justices (until recently) were all Protestant, and the Connecticut law was informed by Catholic doctrine. By smacking down a Catholic law, the Protestant judges created a new right. This is similar in a way to the decision in Marbury mentioned above.

Roe v. Wade: the controversial decision of all controversial decisions. Buoyed by the new right to privacy, the Court decided that it was a woman’s private choice whether to have an abortion or not. This spawned one of the most polarized fights in the country, with conservatives trying to limit the right to abortion for the past 40 years, while liberals tried to block all moves.

When I talked about “litmus tests,” this is one of the most frequent ones that are mentioned. Conservatives want Justices who are likely to overturn Roe, while liberals want them to keep it.

Miranda v. Arizona: summarized a series of cases that came before the Court, relating to the rights of the accused. When you watch a crime show and the police arrest someone, you’ll notice that they always recite a little speech: “You have the right to remain silent…” This notice is named the “Miranda warning” because of this decision. It enumerates your rights as an accused/arrested person and, if not provided, voids the consequences of not having known (like a confession you make before knowing you are not required to confess).

Roper v. Simmons: is one of the many landmark cases about the death penalty. I picked this one because the name is short and because it deals with an American oddity. It declared that it is unconstitutional to execute a juvenile offender, that is someone that was under 18 at the time of the offense.

American law is of a split mind on capital punishment. On one hand, the Constitution prohibits “cruel and unusual punishment,” on the other it’s not clear whether the word “and” in that phrase means “punishment that is both cruel and unusual” or “punishment that is either cruel or unusual or both.” Certainly, the death penalty is cruel – but it’s not unusual. At least it wasn’t at the time the Constitution was written.

Miller v. California: limits the scope of what the Government can claim is obscene and forbidden from distribution. It is not obscene if it passes the “Miller test” and has “serious literary, artistic, political, or scientific value.”

Texas v. Johnson: invalidated all laws that criminalized the burning of the United States flag.

United States v. Nixon: the case that brought down a sitting President.

Bush v. Gore: the case that made a new President. With the Dred Scott decision, probably one of the worst ever made by a Supreme Court. Not in the outcome (George W. Bush was made President), but in the process. The Supreme Court first issued a halt to recounts, then decided that because of the halt, there was no time to do a recount. It overruled the Florida Supreme Court (which had final jurisdiction on state election law matters) and handed the Presidency directly to George Bush. To clean up the mess, it also declared that the ruling was not going to be setting precedent. The puzzling thing is that it could have gotten the same outcome in a dozen ways that wouldn’t have been so drastic.

Citizens United: America is living with two peculiar legal fictions, both created by the Supreme Court a long time ago. The first one is that the spending of money in campaigns is a form of exercise of free speech. The second one that corporations are a legal person, entitled to most of the rights of the individual.

This has served the country well, and allows people and corporations to freely develop. Sometimes, though, this doesn’t work too well. For instance in the case of email spam, which is interpreted as free speech. It also is of questionable value when it comes to the funding of political positions.

The Citizens United ruling declared that those two fictions are integral to the Constitution, and that limits on spending in political campaigns are unconstitutional, provided the speech is not supporting a particular candidate. The result was a flood of money come election time, an almost interminable barrage of campaign ads by the leading contenders, and policies that clearly favor the corporations with the most disposable income.

Of course, it is fairly easy to point out how voters do not need to be swayed by campaign ads. In fact, just recently Eric Cantor outspent his opponent in a Republican primary by factors and still lost.

You should know, though, that this freedom of speech applied to money and corporations has some seriously good side-effects. For instance, in America companies can advertise the advantages of their products compared directly to the competition. That’s a huge bonus when you are comparison shopping, believe me.

Burwell v. Hobby Lobby Stores, Inc.: It’s really not fair to include this ruling in this list, since it’s barely out. But this blog is about current events, so bear with me.

Hobby Lobby is a case with complex nuance. Concretely, it is about whether a closely held company can refuse to provide contraception to employees based on “sincerely held beliefs.” The Justices answered, “Yes.” The refusal is protected expression of religious belief, which is guaranteed by the First Amendment (which has two clauses, one protecting religion and the other protecting free speech).

The complexity comes from the particulars: conservatives in America have been long chafing at mandatory provisions of the Affordable Care Act. First it was about the mandate to buy health insurance (which the Court mostly upheld). Now it is about the mandates to provide particular forms of health care.

The mandate is, for anyone looking in from the outside, simply a way to harmonize plans. Since people are supposed to comparison-shop, it is necessary to bundle a series of items to guarantee the comparison makes sense.

In this particular case, though, the mandate related to contraception. In particular, this was about pharmaceuticals that are/were reputed to provide contraception by killing a fetus in the womb. Turns out they probably don’t, but the Court didn’t care. It decided all forms of contraception can be avoided by employers.

Of course, as a person that has lived near the Vatican for 10 years, when I hear the word “contraception” itself I immediately think, “Catholic.” And I would be right: every single Justice in the majority in this case is Catholic.

Hobby Lobby is a case that would have probably been decided differently if it had not been about a conservative hot button (Obamacare mandates) and about Catholic doctrine (contraception). Unsurprisingly, the Court alluded to that, restricting the decision to contraception and to “closely held corporations,” ensuring the big employers (like Walmart or Exxon-Mobil) wouldn’t be able to use the same logic, and that other issues (like blood transfusions, psychological help, HIV medication, etc.) wouldn’t be affected.

Just as the Court’s decision in the gay marriage case was just a harbinger of a lot more of them to come (since the Court refused to decide the issue on merit), Hobby Lobby will bring a lot of new business. There is money to be saved by restricting health care, and religious objection is as good a pretense for a good chance to save as any other.

After all, the Affordable Care Act is about leveling the playing field: every employer, every person, every insurance company standardize what’s covered and what’s not. By removing coverage for something, you reduce your own cost while keeping the cost identical for others. You gain an ever so small advantage, and that’s all that matters.

After all, it has already been uncovered that Hobby Lobby (the company) invested in companies that manufacture contraceptives. Tsk tsk.