Russ Feingold: Supreme Court is arm of corporate America

What they have clearly become is a partisan arm of corporate America. This is a real serious problem for our democracy. It’s essentially a court that rules in one direction. Even if they do uphold the health care law, this court is no longer perceived as the independent arbiter of the law that the people expect them to be.

—former U.S. Senator, Russ Feingold

In a surprise move, Chief Justice John Roberts sided with the more liberal members of the Court in upholding the individual mandate of the Affordable Care Act (ACA). But, it would be a mistake to assume this decision signals a return to balance and judicial restraint. Roberts appears to have restored impartiality to the institution, but it is more optics than substance designed to shore up a reputation increasingly under criticism by the American people. Since its infamous Citizen’s United decision, the court has not fared well in public opinion. According to a recent New York Times/CBS News poll:

Just 44 percent of Americans approve of the job the Supreme Court is doing and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views.

In the short term, the upholding of ACA is genuinely good news for millions who will suffer less under the wasteful, punishing, for-profit health insurance system we have in the United States. No more pre-existing conditions, no more life-time caps on treatment, kids get to stay on parents insurance until 26, subsidized insurance exchanges for those who can’t afford premiums, no more dumping you if you get sick, and so on—no doubt these are good, even life-saving, changes to this notoriously bad system—one that has devoted whole departments to denying care.

But, at its core, the ACA is a corporate friendly bill. So, even though it allows better health care access for millions of Americans—and the decision to uphold it is a political victory for the Obama administration—the Robert’s Court keeps its reputation as a partisan arm of corporate America intact. No matter which way this decision went, the health care industry would be fine. The right wanted ACA to fail for political reasons. They wanted to use it to harm Obama’s chances for a second term. Although Roberts, voted to uphold the law, his treatment of the Commerce Clause is of concern to a number of progressive court watchers. Senator Chuck Schumer also expressed concern that the courts limiting the Commerce Clause in the ACA decision could be a way to, in the future, limit the ability of the federal government to help average families.

Adam Serwer, writing for Mother Jones feels the Commerce Clause is not as much of a problem as the court’s reasoning on the expansion of Medicaid. According to Serwer, “The Affordable Care Act substantially expanded Medicaid coverage so that it would cover 16 million more Americans, but it forced states to either take the new funding or give up all the Medicaid funding they were already getting. The high court said that was not kosher.”

The court upheld most of the law, and the mandate that citizens have to buy health insurance or face a tax penalty. Because we have a for-profit health delivery system, in which profits trump human need, we will continue to spend twice per person what other Western countries spend for what has proven to be inferior care. Which is why, as a nation, we can’t let this decision take our eyes off the only sane solution: single payer health care or “Medicare for all.”

Citizen’s United decision was intended to undermine democracy

In the wake of his seeming non-partisan, impartial ACA decision, it’s important to remember Roberts presided over one of the worst decisions ever made in the history of the U.S. Supreme Court—Citizens United. In a recent article penned for the Stanford Law Review, “The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court,” Feingold writes:

. . . Chief Justice Roberts apparently wanted a much broader, sweeping outcome, and it is now clear that he manipulated the Court’s process to achieve that result. Once only a question about an “on-demand” movie, the majority in Citizens United ruled that corporations and unions could now use their general treasuries to influence elections directly.

Despite giving strenuous assurances during his confirmation hearing to respect settled law, Roberts now stands responsible for the most egregious upending of judicial precedent in a generation. As now-retired Justice John Paul Stevens wrote in his dissent to the majority in Citizens United: “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

In other words, let’s not forget, the Robert’s court is a right-wing, partisan court on steroids. The ACA decision, as Arthur Lieber writes, was conservative rather than extreme. But I don’t think it signals a lessening of the ongoing danger this court presents to the nation and the rule of law.

In his article, Feingold suggests that beginning in 2004, with Howard Dean’s campaign, and culminating in the election of Barack Obama in 2008, corporations and their billionaire owners were increasingly alarmed at the growing power and democratizing influence of the Internet. During the 2008 presidential campaign, Barack Obama raised an astounding $500,000,000 online and engaged the electorate through a new, sophisticated use of the Web. The right wing members of the Court, equally alarmed at this expansion of democracy, were eager to counter the growing power and influence of ordinary people with a heavy handed tipping of the scales toward big money. Rather than apply the law narrowly and impartially, the Roberts court, in its Citizens United decision, revealed itself to be actively aligned with the fears and anti-democratic agendas of the 1%. Stepping way outside of its intended role, the court, under Justice Roberts leadership, used a case before it to severely damage the democratic process.

Citizens United resulted in the creation of corrupt entities called “super pacs” designed to drown out the voices of the majority of Americans with massive infusions of anonymous money into the political process. Thanks to John Roberts and the other conservative members of the Court, instead of small-dollar online donations making up the biggest sources of money in the 2012 election, the lion’s share will come from unnamed corporations and a small group of, mostly conservative, anonymous billionaires.

Which is why for progressives, no matter how disappointed you are in President Barack Obama (and I am), it is absolutely crucial that we reelect him for a second term. With a possibility that there will be three vacancies on the Court in the next four years, if Barack Obama appoints them, Citizen’s United can be overturned.