Who Politicized the Supreme Court?

Last week’s oral arguments before the US Supreme Court on health care reform have led to a firestorm of controversy.

Conservative justices grilled Solicitor General Donald Verrilli Jr. on the individual mandate to buy health insurance that’s central to the law and also has been a big issue in the Republican presidential race.

The questioning went so badly for the administration that President Obama warned the Supreme Court against taking “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Actually, as conservative correctly observed, overturning laws passed by Congress is what the Court does, within limits. And I criticized the president for mixing it up with the Court before it’s even issued a decision, due in late June.

Now the left has weighed in, in the person of Maureen Dowd, the over-the-top columnist for The New York Times. The Court, she wrote,

has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.

All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

If that’s so—and I think the divisions in the Court reflect deep philosophical differences more than narrow partisan agendas—who got us there? Who politicized the Supreme Court?

Current US Supreme Court justices in 2010. Photo: Steve Petteway, Collection of the Supreme Court of the United States, via Wikimedia Commons.

Well, it actually started in the 1960s, when conservatives railed against the liberal court of Chief Justice Earl Warren. They’ve been running against “judicial activism” ever since.

But the biggest battles were yet to come. In 1987, President Reagan nominated conservative judge Robert Bork, but following contentious hearings, he was rejected by a Democratic Senate. President Reagan then named Anthony Kennedy, who was approved 97-0.

One of the nastiest confirmations was that of Clarence Thomas, named by President George H.W. Bush in 1991. The inexperienced Thomas faced a barrage of criticism amid former employee Anita Hill’s charges that he had sexually harassed her created a media frenzy. Thomas was narrowly confirmed.

Since then, Democratic presidents have picked liberal justices, Republicans have chosen conservatives, and the Court is split 5-4, with the conservatives in charge.

Photo: Franz Jantzen, US Supreme Court collection.

Democrats criticize the Court’s 5-4 decision to stop the Florida recount in 2000 and effectively hand the presidential election to Gov. George W. Bush and its 2010  5-4 Citizens United decision to allow unlimited campaign contributions by corporations as decisions that helped further Republican goals.

The Court didn’t help matters this time around, either. Why did it decide to rule on the Affordable Care Act in the middle of a presidential election when most of the law’s provisions don’t go into effect until 2014? If Chief Justice John Roberts really cared about appearing to be above the fray, he should have heard the case in 2013.

Also, Justices Scalia and Thomas were guests of honor at a fundraising dinner for the Federalist Society, sponsored by a firm litigating against health care reform. They sat at the same table as Paul Clement, the attorney who ably argued the plaintiffs’ case before the Court last week. Thomas’s wife also worked for a Tea Party organization that opposed health care reform.

And conservatives tried to get liberal Justice Elena Kagan thrown off the case because she wrote several emails praising the act while she was President Obama’s solicitor general.

The chief justice rejected that petition and allowed Thomas to hear the case, too, when both clearly had conflicts of interest. (Scalia was a little more borderline, but his active advocacy for conservative causes has led to intense criticism.)

So, conservatives have a point when they criticize the president for politicizing Supreme Court decisions. But there’s lots of blame to go around, starting with the Court itself.

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