For years -- decades! -- the Supreme Court has been used by conservatives as a way to stir up the vote. Same this time around, only it's liberals' turn to angry. And, if we needed reminding, President Obama was there to let us know what he thinks of the arguments last week during the hearings. As the Times points out this morning, he implicitly warned what could happen if the health care bill were to be struck down, not to mention the slap in the face conservatives on the Court gave voters with their Citizens United decision.
Though the justices are not expected to rule on the 2010 health care law until June, the public reaction to the three days of arguments last week offered evidence of a potential Democratic backlash. In a poll for The Washington Post and the Pew Research Center for the People and the Press, 32 percent of Democrats said they had a less favorable opinion of the Supreme Court after the hearings, compared with 14 percent of Republicans.
“There’s evidence here of a negative reaction from Democrats,” said Michael Dimock, Pew’s associate director for research. The justices “didn’t even decide anything yet, and many people walked away from their hearings feeling more negative about the court. So you can imagine the reaction if they overturn the law.” ...NYT
As many legal scholars and Court watchers point out, it's not likely that the Court will, in the end, strike the law down. But if they do, the backlash could be huge. Anger at the Court has been growing with each 5-4, all-partisan decision. I'd be willing to get that if conservatives on the Court, rather than leave the health care bill, shave it back even a little, the backlash -- fueled by a series of decisions from Bush v. Gore on -- will still make it difficult for Republicans to win elections.
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Meanwhile, the conservative American Legislative Exchange Council (ALEC) has received a blow from its corporate supporters over its influence on state legislatures' radical new laws. The "Stand Your Ground" law that killed Trayvon Martin, among others, is one of ALEC's confections, as are the new laws requiring voter ID's in the states heavily influenced by corporate money.
Two of America's best known companies, Coca-Cola and PepsiCo, have dropped their memberships in the American Legislative Exchange Council, a low-profile conservative organization behind the national proliferation of "stand-your-ground" gun laws.
ALEC promotes business-friendly legislation in state capitols and drafts model bills for state legislatures to adopt. They range from little-noticed pro-business bills to more controversial measures, including voter-identification laws and stand-your-ground laws based on the Florida statute. About two-dozen states now have such laws. ...NPR News
The decision by Coke and Pepsi was driven by protest from civil rights groups, notably Color Of Change.
Progressive groups and shareholder activists want to drive a wedge between ALEC and its corporate members.
"There was no real downside because there was no public accountability. There was no transparency," said Doug Clopp, deputy director of programs with Common Cause. "Everything up until now had been done behind closed doors, and these memberships were not known to the American people."
Common Cause, a nonprofit citizens lobbying group, is also part of the campaign calling on corporate members to end their partnership with ALEC. ...NPR News
The drive to disempower ALEC is also hitting investment managers whose clients don't want their money to go into corporations supporting radical, antisocial legislation.
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Linda Greenhouse has written about the Supreme Court and its personalities for years. She continues to watch it closely -- very closely. The health care hearings along with the shocking strip-search decision have convinced her that there's a serious rift among the justices. Justice Thomas refused to go along with Justice Kennedy's decision in that case in its entirety.
Greenhouse is convinced that there's a "back story" in Florence v. Board of Chosen Freeholders -- the strip-search case. "I don’t know what the back story is," Greenhouse writes, "but I’ve parsed enough Supreme Court opinions over the years to know that there is one. What the external evidence suggests is an internal struggle. Argued back in October, the Florence case was the oldest argued case on the court’s docket by the time the decision came down on Monday. (By way of contrast, 5 of the 11 cases argued in January have already been decided, some of them weeks ago.) Surely something was going on during these last six months."
The rift also appeared in the questions the justices asked during the three days of hearing on the Affordable Care Act and may affect the decision on health care coming in the summer.
On the third and final day of the health care arguments, the justices took up the question of “severability” – what parts of the Affordable Care Act should fall or remain if the individual mandate is carved out. Under the court’s precedents, this is an inquiry into Congressional intent. The question of what Congress would once have wanted or might do now turned various justices into armchair political scientists, a role to which they were no better suited than their role earlier in the week as amateur economists. The effect was somewhat surreal. Late in the argument, interrupting a lawyer’s statement that “Congress would have wanted–,” Justice Kennedy asked: “The real Congress or a hypothetical Congress?”
Although the courtroom audience chuckled, I’m not sure that Justice Kennedy meant his smart question to be funny. And anyone watching or listening to the argument had to wonder: is this the real Supreme Court or a hypothetical Supreme Court? The hypothetical court is the court depicted in so many recent confirmation hearings, where the justices dispassionately go about applying the law to the facts. The real court is – well, by three months from now, we’ll see. ...NYT
There is some talk about the Supreme Court's increasing embrace of a "police state," one that applies, of course, to the people and not to corporations. As the ropes tighten on American individuals, the restraints are lifted in matters of "economic liberty." See Bernard Harcourt (law, Chicago).
At gossip level, I'd be curious to know whether Justice Thomas has discredited himself in some way that will emerge years from now, long after most of us have gone and long after this edition of the Court has faded into history.
