The media has fallen down on the job again. With all their 5-4 decisions, on highly controversial laundry list Republican issues, how could we as a nation not be talking about their activism?
Especially now when a national health care plan is about to offend every small government Republican in the country, even though its not a government run program. Here's a great article from the Daily Beast tracing the historical nature of this court:
We've heard conservatives say many times that the Warren Court overreached, legislated from the bench, and divided America. It’s typically called the most controversial court in American history … But the numbers tell a very different story. Even though Roberts has reigned on Maryland Avenue for just seven years as opposed to Earl Warren’s 16, the Roberts nonet (more accurately, quintet) has issued far more aggressive and in-your-face 5-4 rulings on controversial and high-profile cases and done far more to divide the country. I don’t know what they’ll do on health care, but they already deserve to displace the Warren Court in the controversy sweepstakes.
First I looked at (seven) representative and major Roberts Court decisions in hot-button issue areas.
Race: Parents v. Seattle & Meredith v. Jefferson, also known as the Seattle/Louisville desegregation case. The Court ruled that local school districts basically couldn’t do anything to ensure racial diversity in their schools.
Abortion: Gonzales v. Carhart upholding the federal partial-birth abortion ban.
Campaign finance: Citizens United vs. Federal Elections Commission, which prohibited restrictions on many independent expenditures; also McCain v. Wisconsin Right to Life, which weakened key provisions of the McCain-Feingold law.
Equal Rights: Ledbetter v. Goodyear, which made it harder for (female) employees to sue employers on equal-pay grounds.
Free Speech: Morse v. Frederick, the so-called Bong Hits 4 Jesus case, in which the court limited free-speech rights of students.
Punitive Damages: Philip Morris v. Williams overturning an Oregon court’s smoking-based award to one ex-smoker.
(ALL) Seven of them were 5-4 decisions. Exactly the same five in the majority, and exactly the same four in the minority. Then I went back and looked at eight historic hot-button Warren Court rulings. In fact, of the eight, only one was a 5-4 ruling.
Once Roberts and Samuel Alito hit the bench, the Federalist Society clock started ticking loudly: We’ve got our five now, boys, and we don’t know how long we’ll have them, so let’s get moving. Desegregation? Boom, 5-4! Equal pay? Bang, 5-4! Campaign finance? Zap, 5-4! And so on. The express point has been to radically remake society, without a hoot of concern about whether it was being done by five or seven or nine.
In fact, to most conservatives, if a decision infuriated the Court’s four liberals, so much the better. Some might argue here that I’d better just face the fact that the country has gotten more conservative … America has if anything become more liberal than it was 40 years ago. So no, we’re not “more conservative.”
The main thing that changed is that rabidly right-wing billionaires started throwing many millions of dollars into politics, forming and funding groups like the Federalist Society, which have managed to assert their will.
And so: If we get a 5-4 ruling against the Affordable Health Care act or any part of it, this is the context to keep in mind. It will be another in a series of ferociously ideological one-vote-margin decisions from the court that we do not need history’s perspective to decide is far and away America’s most ideological.