Obama and the Supreme Corp.

July 11, 2012

The Obama administration was on the same side as the conservative, pro-business Supreme Court in some of its most important decisions this year.

ASKED IN 2007 what he'd want to see in a Supreme Court justice, then-presidential candidate Barack Obama answered, "[I]t's not just the particular issue and how they rule, but it's their conception of the court. And part of the role of the court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout."

Judged by this yardstick, Candidate Obama must be awfully disappointed in the Supreme Court under President Obama--a Court that has faithfully looked out for the insiders and the least vulnerable in society.

Most of the important decisions during the Supreme Court's recently ended term underscore the fact that money and power talks, including in supposedly hallowed halls of the highest court in the land. The nine justices repeatedly ruled on the side of Corporate America and the power of the government to restrict the rights of the poor and powerless.

And the truth is that this was what President Obama wanted in most cases--regardless of what he said as Candidate Obama. The White House celebrated the Supreme Court decision upholding its health care law that, in turning back a right-wing challenge, further cemented the position of the parasitic private insurance industry in the U.S. health care system. And when it came to civil liberties versus government power, the Obama administration repeatedly took the side of repression over rights.

The U.S. Supreme Court building

All this provides further lessons about the role of government insitutions in a society where corporations are king--and about whose interests the Democratic Party really serves, desite its rhetoric to the contrary at times.

Throughout its history, the Supreme Court has been a fundamentally conservative institution, acting as a guardian of the status quo--even when that has meant acting completely contrary to the most basic tenets of justice. Likewise, the Democratic Party--while relying on working people and especially women and minorities for votes--has proven to be as devoted to preserving the power and wealth of the business and political elite as their Republican rivals.


WE'RE ENCOURAGED to believe that the Supreme Court stands "above" politics and is immune to the influences of political and economic power. But the whole record of the Court proves otherwise--something that was made clearer than ever this year when a 100-year-old Montana law banning direct corporate political campaign spending in state and local elections was struck down.

Two years after its Citizens United decision--which sparked a public uproar by confirming the bizarre legal logic that corporations have the same rights as individual citizens and that their donations to candidates are equivalent with "free speech"--the Court went even further this time: It struck down a law passed to try to stop political corruption and graft a century ago.

The opposition to corporate influence in the political system is strong. For example, a majority of people in the U.S.--seven in 10 voters, according to one poll--would like SuperPACs, which allow wealthy donors to make unlimited donations to a candidate or party, to be illegal. Yet the Supreme Court ruled for business once again.

The justices, of course, don't rely on corporate donations to win reelection--they stay in office for life. They act in the interests of the ruling class not because they've been bribed with campaign contributions, but because the nature of the Court as a political institution is to maintain the status quo and protect the power of corporations and the rich. The same is true about elected officeholders, actually--which is why they generally serve the same interests even when they aren't being paid off with donations to do so.

Only in the face of a clear-cut shift in public opinion--expressed most effecively by struggle from below--does the Supreme Court in particular and the government in general stray from its pro-corporate mission.

The same commitment to corporate power was clear in the implications of the Supreme Court decision on Obama's health care law. While the media by and large depicted the 5-4 ruling that the Patient Protection and Affordable Care Act was constitutional as the result of a miraculous liberal aberration by conservative Chief Justice John Roberts, the reality is a lot less mysterious.

The law does contain important reforms, such as regulations that bar insurance companies from discriminating against people with "pre-existing" conditions. But positive aspects of the law are outweighed by provisions that safeguard the profits and power of the pharmaceutical and insurance industries at the expense of working people--for example, through the "mandate" that will force millions of people buy overpriced defective policies.

Roberts' decision to cast the deciding vote along with the four liberal-leaning justices wasn't the result of a change of heart. It represented a larger commitment to a health care industry that has a lot to gain from the health care law being upheld.

Meanwhile, when seven justices voted strike a down a provision of the health care law to expand Medicaid coverage for the poor, none other than Elena Kagan was among them. Kagan--who served as the Obama administration's Solicitor General before she was nominated to the Court--and the others based their decision on the idea that it was "coercive" to require states to meet federal Medicaid requirements in order to receive funding.

"Who knew that the Solicitor General thought the Medicaid expansion was unconstitutional?" Kevin Outterson, a Boston University law professor who filed an amicus brief urging the court to uphold the Medicaid expansion, told Politico. "The more powerful thing I think [conservatives] got is on the Medicaid side. Every program of the Great Society, now you at least have to filter it through the coercion doctrine."

So what's next? Are federal standards for public education "coercive"? What about requirements that states administer unemployment benefits?


AND THAT was a Supreme Court ruling that liberals celebrated as a victory. But when the Court had an opportunity to stand up against racial profiling, it said no.

In its ruling on Arizona's draconian anti-immigrant bill SB 1070, the Supreme Court struck down some of the most outrageous provisions, including one that would have required all immigrants to obtain or carry papers proving their immigration status and another that would have made it a criminal offense for an undocumented immigrant to seek work or have a job.

But when it came to the part of the bill that grants police the right to investigate the immigration status of anyone they stop, a majority of justices upheld that provision, so long as police can claim they have "reasonable suspicion."

In other words, if you "look" undocumented, it's "reasonable" for the Arizona police to harass you. With this decision, the Supreme Court gave the green light to the racial profiling of Latinos in Arizona and any other state that passes a similar law.

This decision was in line with another case, where the Court upheld the right of cops to strip search people, even if they've been stopped for the most minor of offenses. Unsurprisingly, Blacks and Latinos are disproportionately targeted for strip searches.

In this case, the justices were under pressure to rule against civil liberties--from the Obama administration. So it's now open season for law enforcement to violate the rights of Blacks and Latinos against unreasonable searches--and we have the first African American president to thank for it.

Civil liberties are taking a beating in the Supreme Court--but part of the reason is the attitude of a White House where the president is a former constitutional law professor and celebrated liberal.

The Supreme Court's recent term had some examples of cases where a majority of justices delivered a decision that represents a shift from past conservative positions. For example, the Court ruled 5-4 that mandatory sentences of life without parole (LWOP) for juvenile defendants in murder cases are unconstitutional because the violate the Eighth Amendment ban on cruel and unusual punishment. Previously, the Court struck down the death penalty for juveniles as well as juvenile LWOP sentences in non-murder cases.

Behind this decision are decades of activism that has cast a spotlight on the cruelty of a system that would execute or lock up for life a defendant who was a juvenile at the time of the crime. Opinion polls prove that public opinion has been shifting on the death penalty and LWOP sentences. The justices were following this trend, rather than leading it.

There's still a ways to go on this issue. Last year, the Supreme Court allowed the execution of an innocent man, Georgia death row prisoner Troy Davis, rather than admit that he had been the victim of fanatical police and prosecutorial misconduct.

But the record of Supreme Court on these and other decisions shows that when large numbers of people are willing to stand up for justice, the rulings of the supposedly impartial justices can be affected.

That's important to remember as the 2012 presidential election draws closer. Every four years, the Democrats and their liberal supporters wheel out the "Supreme Court argument"--that people on the broad left have to support the Democratic candidate for president, no matter how disappointing his record or platform, because otherwise, the Republicans will pack the court with more conservatives.

But the behavior of Supreme Court, including its liberal justices, over the past year--as well as the positions taken by the Obama administration itself on cases before the Court--shows the truth of the famous statement by the late historian Howard Zinn:

[T]he really critical thing isn't who is sitting in the White House, but who is sitting in--in the streets, in the cafeterias, in the halls of government, in the factories. Who is protesting, who is occupying offices and demonstrating--those are the things that determine what happens.

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