Magazine article Newsweek

Opinion: The Apolitical Supreme Court Is Dead; the Supreme Court Is Driven by Ideology That Perverts Law, the Constitution and Democracy

Magazine article Newsweek

Opinion: The Apolitical Supreme Court Is Dead; the Supreme Court Is Driven by Ideology That Perverts Law, the Constitution and Democracy

Article excerpt

Byline: Kurt Eichenwald

I may have been America's last holdout, but I'm finally ready to accept what everyone else seems to have acknowledged long ago: The concept of an apolitical judiciary--carefully interpreting laws, the Constitution and precedent with little thought of policy preferences--is dead. What we have instead are unelected super-legislators clothed in black robes who do handsprings to approve--or shoot down--public policy based on their political beliefs.

There are judges who ground their rulings on logical, unbiased interpretations of our Constitution, our laws and our place in history, but for the most part, the ideal has been killed. And the primary perpetrators of this unforgivable assassination sit on the Supreme Court.

This is not a question of liberal or conservative. There have been times when the court upheld policies I support with what I considered absurd decisions, and times it knocked them down with rulings that seemed reasonable. I believe in a woman's right to choose and personal privacy, but I thought the constitutional pretzels the court turned itself into with both Roe v. Wade (the 1973 case that legalized abortion) and Griswold v. Connecticut (which in 1965 prohibited states from restricting the purchase of contraception) were obvious. Justice Potter Stewart had it about right in his dissent when he labeled the Connecticut statute "an uncommonly silly law" but constitutional nonetheless. There have also been times when a well-reasoned ruling went counter to the outcome I wanted, but I understood that the Supreme Court was supposed to be policy-neutral, an ideal reflected in Stewart's comment in Griswold.

Of late, though, the rationale of some rulings is tough to comprehend. Start with Citizens United v. Federal Elections Commission, the 2010 case that awarded constitutional rights to corporations and held that they could not be limited in how much they could spend to influence an election. This decision transformed our electoral process into a plaything for billionaires and has done more to undermine democracy than virtually any ruling in history.

Chief Justice John Roberts attempted to excuse the inexcusable by feebly rationalizing why this was not an exercise in judicial activism. The court was undoubtedly ruling against precedent, contrary to "stare decisis"--once the near-inviolate standard that courts should respect prior rulings. Oh no, no, Roberts opined: Courts were required to overrule precedent in extreme situations. Yes, making sure corporations get constitutional rights is on par with overruling Plessy v. Ferguson, the 1896 case upholding segregation. It's amazing that granting corporate constitutional rights was so clearly the intent of the Founders when neither they nor hundreds of justices over more than two centuries saw it until Roberts and his pals came along.

The next troubling ruling was in National Federation of Independent Business v. Sebelius, which upheld Obamacare and outraged conservatives. Many of the arguments from the conservative judges--both in opposition and in support of the majority ruling--made no sense. Justice Antonin Scalia was the king of inconsistency, turning upside down his interpretation of a prior case. Roberts's opinion was a train wreck, made even messier by his efforts to once again sidestep precedents. Then there was the portion of the decision that declared Congress--despite its authority under the Constitution's Spending Clause--could not require states to expand Medicaid eligibility to qualify for future grants. The reasoning was complicated, but the arguments by the conservative members of the court will come up again in ways they won't like--and then they will probably ignore the precedent they have set.

Next up, Burwell v. Hobby Lobby, this year. The court's decision has so much dancing around reason and law that it would shame the Bolshoi Ballet, and was written by the justice who is easily the most unfit to sit on the court in my lifetime: Samuel Alito Jr. …

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