Columns » Ernest Dumas

Scalia makes plain court is politicized

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Alexander Hamilton, the driving architect of the American republic and the author of most of the Federalist Papers, anticipated just about everything that would transpire in his republic — just not Antonin Scalia.

Or Clarence Thomas or Samuel Alito, or, for that matter, the full if shaky Republican (the adjective is important) majority on the current U.S. Supreme Court.

The two big things that were missing in the original confederation of states, Hamilton realized, were a strong central government with the power to solve problems across the states and an independent federal judiciary and supreme court, which would hold itself above the raging politics of any time and interpret the Constitution and the laws without favor.

Hamilton feared that the Supreme Court might be too weak to enforce its interpretations, since it could not appropriate money like Congress or lead an army like the president. But that soon turned out to be a needless worry.

What he seems not to have anticipated was a Supreme Court that would establish itself as a superlegislature, superimposing its ideas about which problems should be solved and by whom and how, and, yes, even which party and which candidate deserved to be in the White House. That is what we have today, that is, when party discipline can keep the ranks steady.

Yes, that was also the popular charge against the court in the days of Earl Warren and William J. Brennan (appointees of a Republican president), when it was holding that black children were entitled to schooling equal to that of whites, strictly interpreting the Bill of Rights for criminal suspects and holding that popularly elected legislators, except U.S. senators, had to represent approximately equal numbers of people. It was creating law, not interpreting it, the critics said. The framers, see, never meant rights to be equal.

The big dump of decisions in the final days of the court's current term makes the point, over and over, that this is a political judiciary, not the independent one that the Federalist Papers guys wanted. Unlike any appellate court I'm familiar with, which studiously avoids issues that are not raised, this court goes out of its way to address legislative issues that are not even before it. Like a legislature does.

If Congress and the states won't do more to stamp out collective bargaining by workers, the court said the other day, by golly we will. It was not a big case or a vital issue, but it affected one of the only two or three remaining vibrant unions in the country, the Service Employees. Even the liberals on the court went along, and against the union, on the long-settled central issue, which was that the union had to allow nonunion employees to opt out of a temporary surcharge to fight antilabor initiatives on the California ballot. Although the issue was never raised in the case, the Republican majority went further and said the union had violated free speech rights by not sending every nonunion worker a separate notice allowing them to opt in.

Under the Supreme Court's rules, the court can address only questions set out in the appeal. But the Republicans, with a gleeful Samuel Alito Jr. writing the opinion, just wanted to kick sand in the union's face. Was that what Hamilton had in mind, you think?

The big case was the now infamous Citizens United, where Chief Justice John Roberts manipulated the proceedings over a long period so that the court could make a sweeping decision for corporations and the Republican Party that even the right-wing groups that brought the case had not sought or anticipated, to permit unlimited corporate funding of political campaigns as long as it was not directly into a candidate's treasury. Then, this week, the Republican majority extended the crazy ruling further by holding that states couldn't forbid the abuses either, no matter how compelling the case that it was needed to prevent corruption.

Sen. John McCain — remember him? — called the Citizens United decision the worst of the century and predicted that it would lead to corruption scandals like those of Watergate, which produced the campaign finance reforms of the 1970s. He's wrong. The Supreme Court has now legitimized all the Watergate corruption but the break-ins.

Then there was the court's weird decision, again last week, to void a huge fine imposed on Fox News and Walt Disney's ABC network by the Federal Communications Commission for violating FCC policies regulating cursing and nudity on television. The Republican majority ducked the only issue in the case, whether the FCC rules violate free speech, but while it did not want to deal with that question the justices nevertheless wanted to let Fox off the hook. Fox News has been the majority's frantic defenders, on everything from corporate political funding to health care. The court said it didn't need to pay the fine.

Monday, the Republican ranks on the court broke slightly and two — Roberts and Kennedy — joined the court's minority to strike down parts of Arizona's immigration law that flagrantly violated federal law. A seething Scalia used his dissent not to condemn his inconstant brethren but Barack Obama — not so much for his administration's opposition to the Arizona law but its action and the president's remarks a few days ago in halting the expulsion of immigrant children brought into the country. Justices do not ordinarily comment on matters that are not before the court. It was as if Scalia was saying, "If John Boehner and Mitch McConnell won't do their jobs and take this guy on, I will."

Next, health care. Never mind that Scalia has already upheld the expansive use of federal power under the commerce clause, does anyone wonder how he will view it when it is a Democratic initiative?

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