By Bill Blum
At his 2005 Senate confirmation hearing, John Roberts, the nominee of President George W. Bush to become the 17th chief justice of the United States, promised to serve in the neutral fashion of a baseball umpire and lead the Supreme Court away from all manner of judicial activism. “[I]t’s my job to call balls and strikes,” he testified, “and not to pitch or bat.”
Few, if any, observers took Roberts at his word, given his track record as a Republican warhorse, including stints as a clerk to Chief Justice William Rehnquist and as deputy solicitor general under the first President Bush. But even the skeptics were not prepared for the judicial counterrevolution that Roberts and his conservative high court brethren have engineered since.
In the space of a few short years, the Roberts court has transformed American law with its miscarriages of justice. Among its dubious lowlights, the court has invented a Second Amendment individual right to bear arms, erected new barriers to age and sex discrimination lawsuits, undercut environmental protection, and, in the Citizens United case—its crowning glory to date—it has recognized corporations as people under the First Amendment with the constitutional right to spend without restraint on political attack ads.
Anyone hoping the pace of the counterrevolution might slow is apt to be disappointed by the time the court completes its current term. If present trends persist, and there is little reason to believe they won’t, 2012 will be remembered as the year the court rewrote the constitutional boundaries between federal and state authority, severely curtailing federal initiatives on behalf of working people, minorities and the poor.
Here are the three pending cases that best define the agenda:
Redistricting: Perry v. Perez
When the 2010 census revealed that the population of Texas had grown by 4.2 million, the state’s Legislature was required to redraw congressional voting districts to comply with the one-person, one-vote standards of the Voting Rights Act of 1965. But in a classic “oops” moment, the Legislature and Republican Gov. Rick Perry remapped the playing field in a way that minimized the electoral clout of the 2.8 million Hispanics who had migrated to the Lone Star State in the previous decade.
Texas, like most Southern states and counties with a history of using poll taxes and literacy tests to stifle minority voting, is required under the Voting Rights Act to obtain “pre-clearance” from the Justice Department or a three-judge court in Washington, D.C., before changes to electoral maps can take effect. The Perry plan was so outrageous that even before the review process was completed, civil rights groups persuaded a three-judge federal panel in San Antonio to scuttle the Republican remap and craft a redistricting plan fashioned by the judges.
With Texas gaining four new House seats in the 2012 elections, the Roberts court is poised to hand Perry an undeserved legal victory that could ensure continued Republican dominance of the lower chamber. A pro-Perry ruling could also deal a death blow to the pre-clearance mandate in general, after a 2009 decision, also from Texas, which eased the ability of municipalities to claim exemptions from the mandate (Northwest Austin Municipal Utility Dist. v. Holder).
Oral argument has been set for Jan. 9, and a decision is expected in time for the March Texas primary.
The Arizona Immigration Law: Arizona v. United States
Enacted in 2010, Arizona’s SB 1070 is the love child of former state senator and rabid immigrant-rights basher Russell Pearce and Gov. Jan Brewer. Among its several provisions, the statute requires state law enforcement officers to ascertain the immigration status of anyone they stop if they have reason to believe the detainee might be an undocumented immigrant. The statute also makes it a crime under state law for undocumented workers to seek employment if they are not registered and authorized to work by the federal government.
In April, the 9th Circuit Court of Appeals enjoined the act’s offending provisions, holding that under the Supremacy Clause of the U.S. Constitution, Arizona’s attempt to criminalize aspects of immigration were “pre-empted” by federal immigration law. The pre-emption doctrine is the long-standing principle that only Congress and the federal government have the authority to exercise certain powers, such as the right to declare war, make foreign policy or print money.
In 1956, in a case with haunting similarities to the Arizona challenge and that ought to be controlling precedent, the Supreme Court cited the pre-emption doctrine to strike down a Pennsylvania law that had made it a state crime to advocate overthrow of the federal government (Pennsylvania v. Nelson). But in May, in yet another signal that the Roberts court is intent on altering the federal-state balance, the Supreme Court brushed aside pre-emption concerns to uphold an Arizona law authorizing the state to revoke the licenses of employers who knowingly hire the undocumented (Chamber of Commerce v. Whiting).
Oral argument on the fate of SB 1070 has yet to be set. In the meantime, Justice Elena Kagan has recused herself from deliberations because of her prior involvement in the issue as solicitor general.
Copycat legislation mirroring Arizona’s has spread to South Carolina, Utah, Georgia and Alabama, whose new immigration law has been blasted in a recent Human Rights Watch report as “grounded in discrimination” and fostering “a culture of fear.”
The court’s decision on SB 1070 will likely determine the fate of these other laws as well, accelerating the transfer of powers long held by the federal government to individual states determined to scapegoat the undocumented.
Obamacare: Florida v. U.S. Department of Health and Human Services
Baseball has its World Series, football its Super Bowl. The concerted legal attack on the Patient Protection and Affordable Care Act of 2010 is the dream moment the Roberts court has been longing for.
The immediate legal issue before the court is vitally important and by now well known: whether Congress has the constitutional power to require virtually all adult U.S. citizens and legal residents to buy health insurance or pay a penalty. But as critical as health insurance is in the everyday lives of all people, there is an underlying legal issue the case raises that is even more critical: whether Congress and the president in enacting national health care legislation have overstepped their authority under Article 1, Section 8, Clause 3 of the U.S. Constitution, otherwise known as “the Commerce Clause,” which grants Congress the power to regulate “Commerce with foreign Nations, and among the several States. …”
Although it lacks the fanfare of the First Amendment and concepts like due process and equal protection, the Commerce Clause has been the basis for a vast panoply of progressive federal legislation, ranging from the National Labor Relations and Fair Labor Standards acts of the 1930s to the Civil Rights Act of 1964 as well as Occupational Health and Safety, Equal Pay and Clean Air and Water acts of more recent vintage.
It took FDR’s threat to expand the Supreme Court from nine to 11 members to move the court to reconsider its once highly restrictive interpretation of the Commerce Clause that threatened to derail the New Deal. And it was not until the 1990s and 2000s that the judicial pendulum began to reverse course, as the court under Rehnquist inaugurated what some on the right have touted as an era of New Federalism, with decisions curbing federal regulation of education and invalidating portions of the Violence Against Women Act.
Since the federal circuit courts are split on the constitutionality of Obamacare, it’s understandable that the Supreme Court would step in to provide clarity. But here, as elsewhere, the trend is ominous. The challenge to Obamacare affords the Roberts court the opportunity to finish the job of New Federalism, and the implications for the country’s future could not be more profound. Would the demise of Obamacare have a legal domino effect, leading piece by piece, case by case, to future efforts to eviscerate Medicare, environmental protection and even Social Security? Oral arguments are set for March 26-28.
In Federalist Paper No. 78, Alexander Hamilton supported the creation of an independent court system, terming the judiciary the “least dangerous” branch of government because it lacked the capacity to “annoy or injure” what he called “the political rights of the Constitution.” But as the three cases topping its 2012 docket suggest, the Roberts court is moving to consolidate nothing less than a judicial counterrevolution.