Friday, February 24, 2012

The Supremes: Those Wild & Crazy Lads In The Black Bathrobes Are At It Again

The Warren and Roberts Supreme Courts bookend my life. The court led by Chief Justice Earl Warren from 1953 to 1969, expanded civil rights, civil liberties and federal power in dramatic ways, while the court led by Chief Justice John Roberts beginning in 2005 has inhibited civil rights and civil liberties and expanded the power of the court to make law and cast law aside when it doesn't meet its political criteria.

Chief among the laws it has cast aside is that limiting political contributions in the 2010 Citizens United case, which without question is the worst high court ruling since the Dred Scott outrage in 1857. That's a lot of years and a lot of rulings, and in some respects the Warren court was as liberal as the Roberts court is conservative, but the Warren court was judicious (pun intended) in conferring and ruling on civil liberties while the Citizen's United decision, in which a majority of justices ruled that corporations have the same rights as individuals, was a highjacking.

Six years on, the Roberts court could hijack again in ruling on the constitutionality of the Affordable Care Act, but there are indications that it is going slow. Some five and a half hours of oral arguments were originally scheduled for March, but the time allotted has been bumped up to six hours with the extra half hour devoted to whether the Anti-Injunction Act may apply.

This federal statute, promulgated in 1793. states that courts may not halt a tax that hasn't yet been collected, and a tax written into the Affordable Care Act as part of its mandate provision won't be collected until 2014.

If you are a fan of ObamaCare, celebrating would be premature.

The Fourth Circuit Court of Appeals threw out a lawsuit last fall against the mandate on this basis and most courts have stated that the statute doesn’t apply. The Obama administration agrees but argues that the mandate provision functions more as a penalty than a revenue-raising tax.

Some observers have noted that this might just be the high court doing its due diligence, while others say that Roberts may not want a ruling to become an election year issue. I happen to think that the court does due diligence only when it has a particular need to cover its ass, while Roberts and his conservative posse -- Justices Alito, Scalia and Thomas -- are far less influenced by public opinion than was the previous court led by Chief Justice John Rehnquist.

This was on offer last week when the court had an opportunity to reconsider Citizens United in light of a Montana state court ruling that upheld a state campaign finance law passed as a result of the political corruption that is rife in that state.

A striking difference between the Montana law and Citizens United decision is that the law was upheld by the state court after a review of political corruption while Citizens United was conjured out of thin air with no evidentiary record whatsoever.

And without question will lead to corruption in the form of corporations and wealthy individuals influencing the outcome of elections -- including the ongoing Republican presidential cage match.

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