This Supremely Republican Supreme Court

By Scott Lemieux, Guardian UK

28 April 12

The Roberts court redefines judicial activism: it is pursuing a states' rights, anti-federal agenda, reckless of the constitution.

he 2008 elections represented a decisive repudiation of the policies of George W Bush and the Republican party. Yet, conservative Republicans still control the supreme court - and this fact may effectively nullify the results of the 2008 election in several important respects. Worse, the Roberts court seems poised to advance its own partisan policy preferences not in the name of fundamental rights or even serious concerns about federal power, but behind feeble constitutional arguments that all but announce their own unseriousness.

The most egregious example, of course, is the very real possibility that the supreme court will strike down the Patient Protection and Affordable Care Act (PPACA), otherwise known as Obamacare, the centerpiece domestic legislation of President Obama's first term. While Obama exaggerated when he asserted that this kind of judicial activism would be "unprecedented", it would be the first time in more than 70 years that the supreme court will have struck down a legislative enactment that was so central to the agenda of an incumbent administration.

Particularly since the constitutional vision of the court that rejected the New Deal was thoroughly discredited, surely such an unusual assertion of judicial power demands appropriately compelling arguments? Instead, however, the constitutional harms being asserted by those challenging the PPACA and urging the supreme court to go against decades of settled law are almost laughably trivial. There is no significant claim of individual liberty being advanced, and nor is there even a claim of a major misallocation of powers between levels of government.

Neither the challengers nor the justices most sympathetic to their arguments have claimed that the federal government does not have the power to regulate healthcare in any number of ways (including the cherished Medicare and Medicaid programs). The challengers have even suggested that had the mandate to purchase been structured as a direct tax, rather than a tax "penalty", it would clearly be constitutional. The idea that a major act of Congress could fall based on such hair-splitting is absurd.

What's even worse is that, at the oral arguments, several justices could not even bother to conceal the partisan political sentiments which the implausible constitutional arguments against the PPACA are clearly meant to advance. Justice Antonin Scalia, in particular, peppered his arguments with inane Republican buzzwords used to oppose the PPACA, sounding more like a third-rate wingnut talkshow host than an associate justice of the supreme court of the United States.

This unprincipled attack on federal power does not stop with challenges to the PPACA. Continuing with one of the Rehnquist court's most dubious lines of precedent, last month a bare majority of the Roberts court (consisting entirely of its Republican appointees) denied a state employee the right to sue his employer over a violation of the Family Medical Leave Act. The court's conclusion that, in this case, a person had a right without a remedy is based on the unattractively anti-democratic principle of "sovereign immunity", the idea that a state cannot be sued even by its own citizens without its consent.

That this principle is inconsistent with basic democratic values would not be the responsibility of the Roberts court if it were actually in the Constitution. But it is not. The 11th amendment, which only bars suits against states by citizens of other states, permits intra-state suits by implication. Modern conservatives on the supreme court, however, will not let the mere text of the constitution interfere with the ability of state governments to violate the rights of their citizens.

And earlier this week, what appears to be another imminent Roberts court attack on federal power could be seen at the oral arguments addressing the constitutionality of Arizona's controversial SB1070. Much of the legislation, which requires state law enforcement officials to enforce federal immigration laws, seems to directly contradict plenary federal powers over immigration and naturalization, but the court is very likely to uphold some or all of its provisions.

Perhaps the most disturbing part of the oral argument - aside from yet more Fox News-style posturing by Scalia - was the fact that Chief Justice Roberts immediately announced that the potential for racial profiling not be considered by the court. This is a strange contention, given that the Arizona law requires local police to ascertain the immigration status of people "reasonably suspected" of being undocumented - a recipe for racial profiling if ever there was one. This is problematic not only because of human rights considerations, but because the need to protect civil rights is a crucial reason why the federal government wishes to preserve the uniform rules it is constitutionally entitled to make. In its zeal to side with the states over federal power, it looks as if the Roberts court will sweep legitimate federal powers, as well as the fourth and 14th amendments, under the rug.

The Republican party may have lost in 2008, but its political will still lives on in a Republican-dominated supreme court that, at times, cannot even bother to pretend that it is doing constitutional law.