US Feature: How the Supreme Court's Next Decisions Will Become Part of 2012 Politics

This Monday, the Supreme Court convenes to hear oral arguments on the first case in its next nine-month session. That case, Douglas, et al., v. Independent Living Center, et al., concerns who has the legal authority to sue states for not providing federally-mandated levels of Medicaid services. It raises some significant questions about the extent of the federalist theory of government, that is, how much power states retain within a federal system.

As important as it is, the case has attracted little interest amid the anticipation surrounding some of the big-ticket issues the Court may rule upo. These include Arizona's controversial law, SB 1070, to deter illegal immigrants residing in the state; the constitutionality of same-sex marriage laws; a re-examination of affirmative action policies relating to educational access; and the individual mandate (or, as the Administration prefers to term it, the minimum coverage provision) in the health care reform law.

And that is not all. This session of the Court includes review of criminal procedure cases that could have a lasting impact. These range from the reliability of eyewitness testimony to the presentation of DNA evidence to problems with poor service from appointed counsel to the legality of putting a GPS device on a suspects' vehicle without a warrant.

Last Monday, even before it became clear that the Administration were pushing to review the minimum coverage provision in its healh care reform, The Atlantic was asking if this is "The Roberts Legacy Term". The title refers to Chief Justice John Roberts, who leads the tentative 5-4 conservative majority on the Court, and the article argues this Supreme Court sitting “will be one of the most challenging in decades.” It predicts, in a word not normally associated with the Supreme Court, “nine rambunctious months” of judicial debate.

It is not just media commentators who see this Supreme Court term as potentially historic. The National Constitution Center in Philadelphia held their preview of this session on Thursday, "The Supreme Court's Upcoming Milestone Term". led by Lyle Denniston of court-watching scotusblog.com.

So what does this all mean for US politics? The first conclusion is that the decisions of this Court, and the ideological underpinnings of the opinions expressed by the Justices coming to those decisions, will have a significant impact on the moral tone of the forthcoming elections. Assuming that President Obama continues with his recent populist attack on the wealthy and corporations, and that he simultaneously defends the cause of the poor and the middle-class in America, then the Court's rulings will feed into that dialogue.

Consider first the arguments used by the Administration, in its petition to the Supreme Court, for a review of rulings by District Appeal Courts that invalidate the minimum coverage provision of health care. The petition hints at the direction the Justice Department will take in defending the provision. It takes pains to point out a prior case, Gonzales v. Raich, where Justice Scalia, the most ideologically-conservative member of the Court, issued an opinion that supports the Administration's position:

The minimum coverage provision is also “necessary  and  proper  for  the  regulation  of  interstate  commerce”—and distinguishable from the statutes in Lopez and  Morrison—because  it  is  “an  essential  part  of  a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”  Raich, 545 U.S. at 36 (Scalia, J., concurring in the judgment).

The significance of this emphasis on Justice Scalia's decision in the Raich case is that Democrats will accuse him of ideological inconsistency, or perverting his beliefs, if he decides in favor of the "big business" insurance companies who, they will argue, have "bought" the Court, just as they are buying the political process through the unlimited use of corporate campaign money allowed in the Citizens United ruling.

Of course, health insurance providers are not the only group protesting the Affordable Care Act, some Republicans oppose the individual mandate from the conviction that it exceeds the powers granted the government in the Constitution. And they will be angered at the amount of times this petition uses Supreme Court cases from the New Deal era, especially decisions after 1937 when the Court was "bullied" into upholding progressive legislation by the President Roosevelt's court-packing threat: 

Congress’s constitutional power “[t]o lay and collect Taxes, Duties, Imposts and Excises,” Art. I, 8, Cl. 1, provides an independent basis to uphold the Act’s minimum coverage provision.  The taxing power is “comprehensive,” Steward  Mach. Co. v. Davis, 301 U.S. 548, 581-582 (1937), and, in “passing on the constitutionality of a tax law,” a court is “concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.”  Nelson v.Sears, Roebuck & Co., 312 U.S. 359, 363 (1941) (quoting Lawrence  v.  State  Tax  Comm’n,  286  U.S.  276,  280 (1932)).

The 2012 elections are increasingly looking likely to evolve into a generational "moral choice" between two conflicting visions of the role of government. And these two political arguments --- that the Court is protecting corporate America or that liberals are threatening the independence of the Court --- will feed into the rhetoric surrounding that election debate. A decision either way by the Supreme Court on the constitutionality of the minimum coverage provision will help Democrats in this campaign scenario: if the Court upholds the law, Democrats will use that success to bolster an appeal to Independents; if the Court overturns the law, Democrats have the rallying cry that this election is the last chance to save the American Dream from corporate interests.

The first case up for oral argument on Monday will mark the beginning of these “challenging” times. Douglas, et al., v. Independent Living Center, et al., at least in the progressive interpretation of the case, will see whether the poor and disadvantaged are afforded the same rights as the rich and powerful to pressure states into conforming with federal law.

California, from February 2008, began to cut payments to some Medicaid providers to save money. Some providers and patients appealed to the courts that the federal laws on Medicaid overrode California's right to cut payments, an argument ultimately upheld by the 9th Circuit Court. That disagreement, however, is not the grounds for the Supreme Court deciding to hear this case; the Court instead will consider who has the right to sue to force states to comply with federal requirements.

California, supported by the Obama Administration, contends that only Congress has the power to determine who can enforce federal law, and that except in some civil rights instances, individuals are not permitted to use the courts to force states to comply with federal regulations. California is arguing that the 9th Circuit's position ““would fundamentally alter the traditional separation of powers among the branches and transform the courts into all-purpose regulatory enforcers of Spending Clause enactments".

California, and the Administration, may have a constitutional point about the necessary limits of an individual's recourse to the courts, but it is not an opinion appreciated within the President's own party, and especially the progressive wing he has been trying to woo back with his 'class warfare' political tone in the last month. Their dissent is expressed succinctly in the title, "Opening Day at the Supreme Court Could Shut Courthouse Doors to the Poor", of an article by Rochelle Bobroff of the National Senior Citizens Law Center. For Bobroff, this case is not about the courts assuming too much power to determine when a state is breaking federal law, but the moral question of...

...whether the Supremacy Clause of the Constitution – commonly invoked by businesses challenging state environmental or consumer protection laws – applies to the claims of poor people, including low income older adults, who were unable to obtain medication from pharmacies due to the reimbursement rates being below cost.

And Lyle Denniston, in his analysis of this case, concludes, “The outcome has the promise of producing one of the new Term’s most important decisions for the structure of government, and for the future of the social 'safety net'.'”

Portentous words; but it seems that the Supreme Court has many such important decisions to make during this term. Against a background of a hotly-fought election, with some of the issues before the Court like immigration and health care reform sure to contribute to the ideological divide, “rambunctious” may prove to be an understatement of the nine months ahead.