If anyone had any doubt that the Supreme Court is the unelected third branch of government subject to the same rules of politics as the other two branches, Bush v. Gore, which put George W. Bush into office at the behest of five Republican justices on the panel, should have laid it to rest.
Here we go again. “The Supreme Court’s conservative justices sharply attacked the insurance mandate that is at the heart of President Obama’s healthcare law, strongly suggesting Tuesday they are prepared to strike it down as unconstitutional,” the LA Times reports.
Republican Chief Justice Roberts did his best to boost publicity by scheduling the longest oral arguments in 45 years: an easy headline, even though the actual time allotted makes a mockery of any claim that there will be more than perfunctory discussion. This is legal theater, played for headlines and managed by the GOP, and it is working: “Supreme Court expresses skepticism over constitutionality of health care mandate.”
To maximize political punch, the Republicans who control the Court accelerated this case, brought by their PAC ally the National Federation of Independent Business (“In 2010, 25 of its members, all Republican, were elected to the 112th Congress”) into court, so that the decision will be released for maximum impact on the November presidential elections.
The intricate discussions on the SCOTUS blog, while entertaining, largely miss the point. The merits of this care were decided 4 November 2008. Most of what is happening now is strategizing, reading of political winds, and calculations of advantage.
The decision is not foregone: there is many a slip ‘twixt cup and lip, and the Chief Justice’s likely goal — a powerful refutation of legislation approved by both houses of Congress and a President elected by 69 million Americans — may not play out perfectly. At its base, however, the Court is engaged in a political process, and it should be understood as such, no more and no less.
what this court’s views are on election tampering?
There are those who legitimately believe that the Congress is limited to certain enumerated powers and that this doesn’t cut it. I don’t agree, but if the Court majority are a bunch of strict constructionists, this law is toast.
Except for the fact that they have allowed for the trampling of individual rights in the name of expanding executive power and using the justification of Congress passing the law to wax poetic about legislative and executive supremacy. The entire logos of the originalist movement is that the Warren Court went farther than the elected legislative or executive branches or public opinion were willing to go on a host of social issues from gay rights to abortion to civil rights to the death penalty to criminal justice issues.
Let us quote the Pontificus Maximus of Originalism, Justice Antonin Scalia defending democratic majorities and legislative and executive supremacy on a host of issues:
Abortion fromCasey
Defending democratically enacted sodomy laws in Lawrence
While I obviously disagree with Scalia on these cases and presumably on the health care act, it would seem that he is conceding, much as Chief Justice Roberts would, that the role of the court is to simply call ‘balls and strikes’ and take a step back and let the democratic process work itself. When this logic is applied to social issues, Scalia has no problem with same sex marriage that is democratically enacted or abortion rights that are democratically enacted,he opposes the ‘imperial judiciary’ imposing its will to overturn the will of the people. In both cases argues that the courts have been politicized and have a responsibility of affirming democratic decisions rather than overturning them.
Particularly his paen to Lincoln and Madison and the Federalist Papers he would recognize that the judicial branch has a solemn duty to defend the supremacy of the legislative and executive branches which are democratically enabled and pursue laws that are democratically enacted, albeit indirectly. For Scalia to overturn health care reform would be, under his own logic and that of his school of constitutional thought, a gross act of judicial activism and a massive act of hypocrisy.Ditto Roberts.
If it is overturned, it will only be by fabrication of new law by a cabal of radical activist judges.
of Supreme Court losers for 75 years. I’m sure that you didn’t mind the court wading freely into politics in the 60s and 70s.
Maybe if your party was a little bit smarter about Presidential elections you wouldn’t have a conservative majority on the court to contend with. In 2000, you nominated a toaster, who then spent a can’t lose campaign running away from one of only 3 Democrats in the entire 20th century to win re-election, and the only one in the post war era. Now your party is seemingly ready to bail on Obama, because if he somehow tried harder there would have been a magical re-alignment of Congress to allow an even more unpopular single payer or public option bill to pass. For most of my life, Republicans have barely had to try.
I am not sure what should be the more embarrassing reversal: Romney trying to pretend Romneycare doesn’t exist, or Massachusetts liberals, who assailed Romneycare– when it seemed like a Republican accomplishment– SPECIFICALLY BECAUSE of the mandate now trying to pretend that it is so firmly embedded in legal precedent as to barely warrant notice.
This is a reality-based blog, CMD, not a Republican-based website. Check the O’Bama links at the top of every BMG page: this website is a huge supporter of the President. We criticize him on occasion because we can keep more than one idea in our heads at the same time. That’s something grown ups do. Gore and Kerry would given the GOP the spanking reason demands if BMG had run their campaigns. In fact, helping the Democrats stand up is one reason we started this blog, and since we did — not that there is any direct connection, just noting the fact — the ridiculous know-nothing/religious fundamentalist modern Republican Party has lost the White House and the Massachusetts State House. As to judicial review, as I’ve said many times, I am not a fan. The Court should decide specific, individual cases and controversies, it does not constitutionally and should not be allowed to assume, anything more: strict construction.
… I’m jus’ gonna have to give this an Oh… SNAP!!!
call this court strict constructionists after granting personhood to corporations.
the Court granted personhood to corporations long ago.
It was not granted by the Court, but by a memo written by a businessman working for the Court.
that’s where it first showed up. But the Court itself has certainly adopted the “corporations are people, my friend” view of things long before Citizens United.
First, I am not sure our esteemed collaborator whosmindingdemint has Citizens in mind: “this court” may simply mean “the Supreme Court.” There are a lot of courts out there, after all. Second, Romney’s comment, although subsequently spun to good political use, was not that corporations are themselves people, but that they are made up of people.
– an even more absurd notion than the Court’s, if that is possible. Corporations, as artificial legal constructs, of course are not “made up of people” – they have no corporeal existence whatsoever. They may well employ people, and be owned by people, but they are not “made up of people.”
an interesting discussion that we have had before, but I still disagree with this.
It is– among other things, granted– a mechanism for large numbers of people to act in a coordinated manner.
If David has a lemonade stand, and has free speech rights, and Bob sells ice from his ice machine, and has free speech rights, then David and Bob still have free speech rights when they work together in a partnership. David and Bob still have their rights, but they also have the right to speak together, for their partnership.
I do not see why those rights are somehow lost if they organize themselves differently. When the corporation speaks, it is people that cause it to speak, and those employees have free speech rights, and it speaks on behalf of people that own it, all of whom also have free speech rights.
Sorry about that.
Off the soapbox now. I know we have been through this before. If the search function was better, I would just post a link to that discussion.
I know this is a very old diary, but I saw something today that is germane to a discussion we have been having on-and-off for a few months.
Bloomberg published a list of the 500 largest corporations in 1812, which prompted the NPR Planet Money team to inquire about the origins of the concept, and talked to Richard Sylla, a professor at NYU Stern School of Business.
Sylla says that the concept originated in Europe, as something granted by special act of government– the king– to someone or a group of someones who gave the king some kind of favor, and that the grant usually came with a legal monopoly. Like the East India Company. Those not on a first name basis with the monarch did not enjoy limited liability, monopoly, or anything else.
Early corporations in the US created similarly by special act of government, but the concept was modified to comport with American ideas of equality: the ability of anyone to form a corporation is the American innovation.
See Planet Money.
I don’t know if they made this a podcast (I am always weeks behind) but I hope they do.
and the Citizens United ruling as an example of judicial activism run amock. But Southern Pacific v. Santa Clara is a good example of how insidious these things can be; interpreting a margin note as law because the court knew it couldn’t be part of the actual decision.
Political.
If a “President Romney” had been behind passing this law, it wouldn’t have even gotten to the Supreme Court. The only reason this is even being debated is because the President is a Democrat.
I agree!
Of course, in this it is no different from all Supreme Court cases. The Court is a political institution: a branch of the government, which is a political construct. It is in this sense identical to the Congress and Executive, except that it is unelected.
…figured I’d sum it up. 🙂
yup
Does a corporation become a person at conception or birth?
If I sue David’s for selling Lemonade that killed my cat or polluted my drinking supply, why is he protected by limited liability? Does his personhood give him superpowers?
How many votes does the corporation get David’s, Bob’s and the “corporation?”
My vote is private when I’m in the ballot box, but I have to be a citizen with an address to vote. How about a corporation?
Ha, ha. The corporation begins when it is organized and formed.
He is protected by limited liability because the statute on business organizations so provides. So, not superpowers, but powers granted by statute. I do not see that the statute requires that the people forming the corporation waive their constitutional rights to free speech or anything else in order to form the corporation. I am not certain that it even could.
I’m not sure what you are asking here. The owners of the corporation vote to cause the corporation to do X or Y. David and Bob vote in elections for government office, and the corporation does not.
I do not think that you mean to suggest that constitutional rights are limited to voting citizens; this would be a significant departure from our tradition. So I am left with: so what?
My questions for you are:
1. Is it the case that corporations have no constitutional rights at all? Put another way, can property owned by a corporation be taken by the government for public use without compensation? Should corporations be capable of contract, and be capable of using the courts to enforce contractual rights?
2. If not, then it must be the case that corporations have some rights but not others. In that event, one must articulate a distinction more meaningful than “we like it this way.”
I agree with you 100% that corporations have certain constitutional rights, and I would even agree with you and your support of Citizens United that free speech is a right even corporations are entitled to. Where I completely disagree is the contention, which apparently the Solicitor General (your nearly batting 0-2 buddy!) never even discussed, that political donations are even an act of speech in the first place. If I am a big telecom business, and I give a ton of money to conservative Congressman to run ads opposing abortion so they can get re-elected and vote against telecom regulation, am I really engaging in political speech regarding abortion or an economic transaction? I would argue that big telecom corporations have no opinions affirmative or negative whatsoever regarding abortion, but that they do have opinions regarding telecom regulation. Why can’t the state at least regulate the content of ads so we know who is paying for them and for what purpose? I’d be a lot more willing to go along with overturning if McCain Feingold if an alternative regulation regime at least forced Candidate X to say ‘this anti-abortion ad was paid for by Giant Telecom Company X’ so the corporation is directly tied to a partisan cause it is supposedly endorsing.
A great real world example is Target, their donations to anti-union reps who were also anti-gay led to a massive boycott of Target by the gay community and totally ruined their street cred as the liberal alternative to Wal-Mart. Laws that at least force those disclosures and bring more transparency to the process would seem to be sufficient deterrents to corporations donating to candidates and taking stances and candidates openly admitted to accepting those contributions. If it was truly sacred political speech why all the secrecy?
… the equal protection clause? I’ve never understood the corporate right to free speech: if corporations are composed and comprised of people, who enjoy the right to free speech, then doesn’t the amplification, indeed, even the multiplication, of their speech as a corporation constitute impermissibly malapportioned speech…
If we believe in the principle of one citizen, one vote why doesn’t this extend to one citizen, one voice? Why do the Koch Brothers, for example, get to amplify and multiply their individual speech through the speech of the numerous corporations they control?
And what of a janitor, say, in the employ of one of the Koch Bros corporations but who has a diametrically opposed outlook? Is this permissible? How can the speech of one or two, particular, people who are part of the corporation be the voice of the corporation at the expense of another particular person?
… if money is speech and for corporations money comes from profits, then isn’t the corporate use of money for speech really perscribing (or hijacking) the speech of non-corporate persons when no such speech intent can be inferred? That is to say, when your corporation donates money to a PAC (a practical use for money as speech) and that money came from me, aren’t they superimposing onto the speech value of my money in a way that I never intended, and isn’t that an violation of my money-as-speech rights?