My friend Robert Barnes at the Washington Post writes about the paradox of a high court being clobbered by the left and the right at the same instant. Just as Newt Gingrich is proposing that the court be made subordinate to, well, him, the left seems to be waking up the fact that “equal justice under the law” comes a lot more readily if you happen to be named Mr. Wal-Mart or Sir AT&T. Barnes notes that while its always true that the court gets special attention in election years, “somewhat surprisingly for a court that is moving to the right and where Republican appointees hold sway, the heavy fire is coming from those who want the GOP nomination.” How can the court be so conservative, he wonders, if all the conservatives think it’s not conservative enough?
One possible answer is that the Supreme Court has always been used as a dog whistle on the right to talk about election issues that matter deeply to social conservatives, including abortion, religion, and race. Criticism of the “activist” or “elitist” courts has become such a staple of GOP barnstorming that it almost doesn’t matter that the renegade activist court has recently upheld partial-birth abortion bans and allowed tax dollars to go to parochial schools. In other words, when Newt Gingrich or Rick Perry screeches about the court, they’re just reusing a Meese-era talking point. Nothing to see here.
Barnes also explores the theory that, because it is made up of four liberals, four conservatives and Anthony Kennedy, the court will always be disappointing someone. We all hate the court because we all just want Kennedy to pick a side. This too has some merit. But here’s one more explanation: The court now represents the overlap—that sweet spot in this brilliant Venn diagram—where the complaints of the Tea Partiers and the Occupy Wall Streeters can be focused on one spot. Complaints about the court perfectly echo blogger James Sinclair’s observation that the left and the right have a common enemy. The left hates big corporations, the right hates big government, and both sides forget that the problem is big corporations lobbying big government to enact laws favorable to big corporations.
Yes, it’s an oversimplification. But it does explain why public sentiment may be beginning to harden against the Supreme Court in general and Citizens United in particular. From a purely symbolic standpoint, Citizens United is a powerful statement: Big government is now in the control of big money. In an act of reverse statesmanship that still boggles the mind, the high court, with Citizens United briefly united both sides of a very polarized electorate around the idea that the court let big business to buy Congress.
That makes the upcoming term doubly interesting now. The court will face an array of questions about whether government is too crazy powerful: Can the cops stick a GPS device on your car without a warrant? Can the feds force Arizona out of the immigration-law game? Can the government force you to buy health insurance if you are hellbent on a slow and painful death? It will also face a host of questions about whether corporations can further immunize themselves against ordinary people: Can consumers sue credit repair companies for excessive fees? Can investors bring securities fraud suits for insider trading? Can oil and gas workers injured on the job sue to receive workers’ compensation? And because many of these cases scramble right/left ideology in much the way Sinclair’s Venn diagram does, the court may find itself in a minefield of debates it would rather sit out, debates it’s just agreed to referee this term.
If Americans begin to suspect that the Roberts court has been complicit in the conspiracy to make ordinary Americans less safe, less free, and less protected by the law—just as big corporations have become bigger, richer, and more immune from suit—there may also be a few more arrests on the steps of the court in coming months. As my friend Barry Friedman has argued, the court is hardly immune from this type of popular backlash and may conform its behavior this year in an effort to quiet it. The last time we saw the American people revolt against the court, it was in response to the “nine old men” who couldn’t do quite enough to gild the Gilded Age. The more people learn about what lurks under Citizens United, the more frustrated they may become.
I confess that I’m not quite sure how any of that will play out in any one case this term, though it may mean the court decides not to add the most controversial case about Obama’s health care law to this year’s docket, if it can kick things down the road until the American people have a chance to cool off. But if Americans become—and stay—focused on some of the ways the courts have actually contributed to their problems in recent years, I have no doubt the Supreme Court will sit up and take notice, and maybe just cool off a bit as well.