Monday, June 13, 2011

‘Right-Wing Legal Engineering’ and the Roberts Court

      Whatever else one can say about Newt Gingrich’s shot-in-the-foot presidential campaign, the former speaker of the House was right in his fateful “Meet the Press” appearance to caution his fellow Republicans against “right-wing social engineering.” Gingrich directed his advice to the House Republicans who want to transform Medicare, but the Republican appointees who now control the Supreme Court’s decisions could also benefit from the advice.
      In particular, Chief Justice John G. Roberts Jr. needs to ask himself how he wants the Roberts Court remembered years from now. So far, the record is mixed on how far Roberts will carry the conservative views he brought with him to the court at the risk of exposing the court to criticism for right-wing legal engineering.
      With 5-4 votes, the court has weakened reproductive rights for women (Gonzales v. Carhart, 2007) and narrowed enforcement of the exclusionary rule (Herring v. United States, 2009). More dramatically, the Court in 2010 freed corporations (and unions) from any limits on what they can spend in political campaigns (Citizens United v. FEC).
      On the other hand, the court stopped short of prohibiting all racial diversity policies by local school districts (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). And it caught itself right at the brink of declaring the landmark Voting Rights Act of 1965 unconstitutional. (North Austin Municipal Utility District No. 1 v. Holder). In the first case and probably in the second, however, it was Justice Anthony M. Kennedy, not Roberts, who stopped the court from a right-wing tear.
      The court’s next two major tests of potential right-wing engineering were forming in lower courts last week: the constitutional challenge to President Obama’s health care reform and a new constitutional attack on campaign finance limits on corporations.
      The federal appeals court in Atlanta on Wednesday (June 8) held the third appellate-level arguments in the partisan-inspired attack on the yet-to-be-implemented health care law. Opponents say Obama and Congress exceeded the federal government’s powers in requiring everyone to have health insurance and in imposing new Medicaid requirements on the states.
      Meanwhile, a Reagan-appointed federal judge in Alexandria, Va., reaffirmed on Tuesday (June 7) his decision to hold unconstitutional the century-old ban on corporate campaign contributions to federal candidates. Judge James Cacheris ruled that the First Amendment gives corporations the right to make direct campaign contributions to candidates. Two days later, however, the federal appeals court in California became the second in two months to uphold local ordinances with similar bans on corporate campaign contributions.
      On both issues, health care and campaign finance, there are precedents from history that should weigh in the Roberts Court’s mind when these issues reach the justices, possibly as early as its next term. The Lochner-era court carried freedom of contract too far in freeing corporations from some economic regulations. And the post-Taft court of the early 1930s discredited itself by striking down some of President Franklin D. Roosevelt’s New Deal programs to solve what were then the nation’s most pressing economic problems.
      The Roberts Court conservatives are likely to approach both issues, however, with views and sympathies in line with the challengers. Roberts made his distaste for campaign finance regulations clear in his second term by leading the court’s decision that, in advance of the Citizens United decision, gutted the McCain-Feingold law’s effort to curb corporate-financed political commercials (Federal Election Commission v. Wisconsin Right to Life, 2007).
      The court later struck down a separate part of the law, the so-called millionaire’s provision, that sought to level the playing field somewhat for candidates running against wealthy, self-financed opponents (Davis v. Federal Election Commission, 2008). Later this term, the court seems all but certain to strike down an Arizona law aimed at fortifying public campaign financing systems by increasing public subsidies for candidates running against high-spending opponents (Arizona Free Enterprise Club v. Bennett).
      In his ruling, Cacheris anticipated that the Citizens United decision liberating corporations from a campaign spending ban similarly dooms a ban on direct contributions to candidates (United States v. Danielczyk). To do that, he had to explain away the Supreme Court’s decision only eight years ago reaffirming the ban on corporate campaign donations because of the risk of corruption (Federal Election Commission v. Beaumont, 2003.) In its decision to uphold a similar ban in a San Diego ordinance, the Ninth Circuit accurately noted that Citizens United expressly left the contribution ban untouched (Thalheimer v. San Diego).
      The challenge to the individual insurance mandate in Obama’s health care law appeals to the conservative bloc’s instincts for limited government. It also harkens to Rehnquist Court decisions that limited Congress’s Commerce Clause powers, such as the 5-4 ruling to strike down a provision creating a federal cause of action for victims of gender-motivated violence (United States v. Morrison, 2000). But the opponents’ argument collides with the broader view of federal power in the Rehnquist Court’s later decision to elevate the federal ban on marijuana over a state law allowing noncommercial medical use of marijuana (Gonzales v. Raich, 2005).
      After the Roberts Court’s burst of activism in 2007, Justice Stephen G. Breyer complained both from and off the bench about the majority’s lack of restraint and disregard for precedent. History may make the same assessment if the Roberts Court carries its conservative views too far in coming terms.

1 comment: