The Supreme Court has released a number of opinions, and it’s been a tough week for conservatives. Most of the focus has been on the big political fights – federal subsidy for state “Obamacare” exchanges was upheld and marriage equity is the law of the land in all fifty states. It was the latter that gave us the most blistering dissent from Justice Scalia:
“A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” he wrote in one of the more coherent statements in his dissent.
But another ruling, striking down part of the Federal “Three Strikes” law, illustrates judicial activism even more clearly. All of this begs the question as to where Scalia’s logic was in the “Citizens United” ruling in 2012 that declared corporations to be people, too. There is judicial activism, yes, but it’s more about filling in the gaps left by years of a completely dysfunctional Congress. Someone has to be the adults – even one branch of government has to endure Scalia’s sometimes childish ranting.
We should start away from the hoopla in the decision rendered in Johnson v. United States. In this case, the court ruled 8-1 that counting past convictions as “violent” under the “Three Strikes” provision to stop career criminals had to be more specific. They struck down using convictions for “”conduct that presents a serious potential risk of physical injury to another”.
The reason this is interesting is that the courts have ruled five times in seven years that this clause was troubling, but always left it up to Congress to correct it. They saw their role as something like the national lawyers, giving advice to the elected officials as to how to bring a law into compliance.
That’s hardly “judicial activism”. But the patience required to hold that position has apparently worn out.
The court’s broad rulings this week probably reflect that frustration as much as anything. It appears that the Supreme Court has become emboldened to act, rather than advise, using their power to fill the gaps in left in our otherwise carefully balanced system.
It begs a re-visit to the halcyon days when the court had more faith in the system, which naturally brings us to the only recent case as active as the declaration of marriage equity – Citizens United. In that case, the court didn’t just rule that “corporations are people”, it issued a very nuanced and thoughtful treatise on the nature of free speech in an open society.
The gist of it is that speech is almost impossible to stop, so why bother trying? Money will always find a way to influence elections, so laws preventing it are doomed to failure. The only reasonable solution is a standard based on disclosure, the majority opinion reasoned. Let the people understand the nature of the money, er, speech, by labeling where it came from. Congress already has the power to do that, and has enabled the FEC to do this, so why not?
It was naive at best for the Supreme Court to assume that the political system was capable of implementing a system like the one they proposed. The result of Citizens United has been simply unlimited anonymous money pouring into the political system like a tidal wave.
Yes, where was Scalia’s logic when that ruling was handed down?
But that’s not where the court is today. A much bolder court handed down three rulings that indeed reshaped the political landscape. The Obamacare ruling was hardly anything new, but Marriage Equity certainly is. Striking down a big part of “Three Strikes” was also very bold.
Would the court act the same way if Citizen’s United was revisited? I think it’s worth trying. We have seen the results of the court’s action and it hasn’t been good for genuinely “free” speech. Government in general has shown it is unwilling or unable to follow sage advice from the court, meaning that they might feel a need to take control.
In many ways, this mimics the rise of the Federal Reserve as the ultimate economic power in the US. It, too, has been filling the gap left by an ineffective Congress that is constantly locked in conflict with the President and incapable of even passing an actual budget. The economic stimulus that everyone knew was necessary fell to the Federal Reserve despite the inherent inefficiency in doing it with pure monetary policy.
Everyone knew more had to be done. Only the Fed had the guts to do it.
Are we looking at a new, activist Supreme Court? The short answer appears to be a rather emphatic “Yes!”. It also appears to have come from sheer exasperation and a desperate need to have adults in charge somewhere. But does Scalia have a point, namely that a Supreme Court with so much power is a definite threat to Democracy?
The short answer to that is, again, “Yes!” While those of us on the left have good reason to cheer the rulings that were handed down today, we have to remember that they are the product of an utterly broken system. A few victories are good and worth savoring, but we still have a tremendous amount of work to do.
Our democratic-republic is gradually slipping away from democracy towards a rule by the elites. There is a long-term problem that our leaders understand and are willing to act to correct as well as they can. But if we are really a free nation it has to fall to us to fix the problems.