October 3rd, 2006

November is about the Court, too

Tuesday the Supreme Court begins its new session in what promises to be a very significant year both in terms of the decisions handed down and in forecasting the future of the Roberts Court. The Court has opted to hear cases that, as the New York Times says, “offer few off-ramps, requiring instead that the justices proceed to rulings that will define the new court in both substance and style,” not to mention have serious effects on the country.

The media rarely does any serious SCOTUS reporting until the Court’s opinions start coming out in May, but resources are available for those of us who are interested. Also, a new administrative decision by the Court gives us a front row seat as daily transcripts of arguments will be available immediately for the first time (here).

As the session starts, I can’t help but recognize an essential–but currently unfortunate–reality: you can’t lobby the Supreme Court. We can stand with our noses pressed against the glass and watch, but we can’t turn on the grassroots to try to sway the Court.

Or can you?

When it comes to the Court, all politics are anticipatory.


Coming before the Court this session are cases about limiting abortion and punitive damages that would never have been passed by a Democratic Congress. More importantly, there would be no fear in the hearts of women and injured consumers (or their defending Democrats) had the Court been filled by even two moderates, let alone liberals. As long as our legislatures in the States and in Washington are held by the GOP, our only recourse will be to cross our fingers and hope.

Take, for example, the abortion case coming before the court (Gonzales v. Carhart). In 2000, the then-already-conservative bench struck down a Nebraska law banning “partial-birth abortions” because (a) it had no provision to protect the health of the mother, and (b) was so broad that it effectively banned all second trimester abortions. In 2003, obviously banking on a victory by Bush in 2004 and a couple more Justices on their side, the Republican Congress unleashed a direct challenge to the Court by passing a bill that was almost identical. The bill energized the regressive base going in to 2004 and hung on how a new Court might rule (it ruled 5-4 against in 2000). That bill was passed by the Congress that was elected on 2002. That bill was applauded by the president that got reelected in 2004. And that bill is coming before a Supreme Court that was recently realigned by that same president and the Senate we elected in 2004, 2002 and 2000.

Every election is about the Supreme Court. We won’t be picking any Justices after November, but we might be asked to confirm one. And only if the Democrats win in November will they have any shot at passing legislation to extend the rights to a safe and legal abortion. And only if the Democrats win in November will there be any chance that the Court will be asked to rule whether universal health care is legal. The Right may hate activist judges, but it loves asking the Court to get active on regressive issues. Only Democrats can temper that.

I sat down tonight to blog about the upcoming session. However, I immediately realized how silly that would be. Yes, it’s important for us to know why the Court is considering whether the Constitution denies local school districts the authority to voluntarily integrate racially segregated schools, but the writing for this session is already on the wall. It’s an election year and one thing that I haven’t heard the Democrats saying is that a GOP loss would take away the conservatives’ ability to set the agenda for the Court, too.


Technorati Tags: 2006, Abortion, Elections, Judiciary, Roberts Court, SCOTUS, Supreme Court


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5 Comment(s)

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  1. Matt Browner-Hamlin Says :

    It’s an election year and one thing that I haven’t heard the Democrats saying is that a GOP loss would take away the conservatives’ ability to set the agenda for the Court, too.

    I’d love to hear Dems talk about the need to protect the nation from more GOP court packing, but I’m not surprised that we don’t. That would require standing for a very clear vision of America and most candidates of either party would rather hem and haw about what role the judiciary plays than talk seriously about the importance of the courts.


  2. Austin Says :

    I guess what I’m saying is that this is about more than court packing, it’s about preventing the conservatives from passing bills designed to be deliberate challenges to the law. The House, which has nothing to do with confirmation, is often the source of the most oppressive legislation that eventually winds up in the Court. Keep in mind that many Democrats and Republicans seemed to be ok with the torture bill because they figured it would be held unconstitutional. It’s a dare that the Court has to take, and every judge that gets confirmed at every level until the Democrats take over just makes it tougher. But we can stop passing illegal laws even before we regain the right to nominate judges.


  3. SteveIL Says :

    Austin,

    You said:

    I guess what I’m saying is that this is about more than court packing, it’s about preventing the conservatives from passing bills designed to be deliberate challenges to the law.

    I agree with what you say about what is court packing, but disagree with the rest of your statement.  The whole point of Congress is to pass the laws, and change them as necessary, provided they are Constitutional.  If anything, I believe a correct statement would be that the conservative Congress making laws has led to deliberate challenges to precedent, something Congress is very much authorized to do.  Congress doesn’t make challenges to law, they make the laws.  It is up to the Courts to challenge whether or not those laws are constitutional.


  4. Austin Says :

    Steve-

    I think it is important to recognize that the abortion law in particular was written specifically to take advantage of a new court.  Almost the same law was held to be unconstitutional and so this bill was, in fact, a challenge to the court.

    That said, you’re right.  The genius of our law is that it grows and shifts according the the interplay between the Congress and the Courts.  Getting the Congress you want, based on your political ideology, means that the battles over which direction to shif the law will be on your terms.
     


  5. REB 84 Says :

    I was impressed by one suit the court decided not to hear.  A lower court ruled that Gannett had wrongfully fired five strikers in the Detroit Newspapers strike a few years back.  By refusing to hear the case, the Supreme Court upheld something resembling unions right to strike.



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