Some observers of the U.S. Supreme Court say an argument can be made that President Barack Obama is not necessarily the most influential man in American government.
It’s Justice Anthony Kennedy — the swing vote on an often-divided panel.
“Whoever is in the middle has the power because the Supreme Court is so polarized right now,” said attorney Lawrence Kellogg, a partner with Levine, Kellogg, Lehman, Schneider + Grossman in Miami. “Whoever has the swing vote is going to be the most powerful, and all the justices and law clerks are going to be writing proposed opinions to try to capture that vote. It’s a very political situation.”
The court led by Chief Justice John Roberts has been dubbed by some as the “Business Court” because of an assortment of rulings in the last several years. The fear by progressives is the court will strike down Obama’s Affordable Care Act mandating health insurance coverage for nearly all Americans. A hearing in March was cantankerous with conservative-leaning Justice Antonin Scalia comparing the law to requiring Americans to purchase broccoli.
Some say the rancor is the reason the public has the lowest opinion of the Supreme Court in a quarter century.
The Pew Center for the People & the Press in Washington found a 52 percent approval rating in a recent survey, down from 58 percent three years ago and high of 80 percent in 1994. The result came from a nonpartisan telephone survey in April of 3,008 adults.
“The Supreme Court, when it embarks into politics and becomes a proactive player on political issues, it is going to basically be treated as a political institution, and with that the lack of confidence of the community declines accordingly,” said Miami commercial litigator Andrew Hall of Hall, Lamb and Hall.
Trial lawyer Alan Kluger, a partner at Kluger, Kaplan, Silverman, Katzen & Levine in Miami, said, “At least in my life — and I have been a lawyer since 1975 — I have never seen the Supreme Court as political as it is now.”
Bush v. Gore
Kluger, who considers himself an independent, said the court became highly politicized in 2000 when it put an end to the presidential recount in Bush v. Gore .
“It was real, real obvious the Supreme Court chose the president of the United States,” he said. “That was the beginning of what you see now: a court driven by ideology instead of pragmatism.”
Bruce Rogow, a Fort Lauderdale constitutional lawyer, called the election decision a watershed moment that has led to the view that the court is politicized.
“The justices got to make the law work to pick the president who to a large degree shared their vision,” he said. “That was novel. After that, it was Katie bar the door. The sides lined up in generally predictable ways, and the recent arguments, where justices felt free to be vigorous advocates, contributed to a feeling that personal views shape decisions.”
Carroll Doherty, associate director of the Pew Institute, said the court’s dip in approval may be more indicative of a general distrust in the federal government.
“There is a lot more partisanship on a lot of issues, but let’s be clear, the court is viewed more favorably than Congress by a large margin,” he said.
One of the more interesting survey findings is that both Republicans and Democrats are not happy with the high court. Republicans are mad because Obama started shaping the court, nominating Sonia Sotomayor and Elena Kagan.
Democrats are furious over remarks made by conservative justices during the hearing on whether the health care law violates the commerce clause of the U.S. Constitution.
Hall said the conservative justices demeaned themselves by echoing remarks made by politicians affiliated with the Tea Party fringe.
“Since health care is a national concern, it clearly is a pre-emptive area of the law that affects interstate commerce that Congress can regulate,” Hall said. “That should be the beginning and the end of the analysis.”
Doherty notes public opinion of the court didn’t shift much with Bush v. Gore . “Even after that controversial, momentous decision, the court was still held in pretty high esteem,” he said.
‘Enjoy the spectacle’
Rogow, who has appeared before the high court, said politics is all in the eye of the beholder.
“There is no doubt that justices are shaped by their experience and views of how life should be lived and, because the law and the Constitution can be massaged to reach a desired decision, it is understandable that some would say the court is politicized,” Rogow said. “But here is the thing: If the votes go the way I prefer, the court is wise. If they go the other way, it is politics. So the answer is to roll with the decisions and know that life and law are always in flux. Just enjoy the spectacle.”
There is little doubt the court moved to a more conservative, more business-oriented mold in 2006 when President George W. Bush picked conservative Samuel Alito to replace centrist Sandra Day O’Connor.
And should popularity of the Supreme Court really be an issue?
“If you look back to the ’50s and ’60s, the Supreme Court was really unpopular because of all the civil rights acts it was upholding,” Kellogg said. “In the ’30s, it was unpopular because it was striking down all of President Roosevelt’s New Deal acts.”
Rogow said playing politics with the court goes back to President Thomas Jefferson’s day.
For many in the legal community, two 5-4 decisions last year resonated as protection for big business.
The Supreme Court struck down a class of 1.5 million women in a discrimination suit against Wal-Mart Stores Inc., saying the class was too diverse to press a joint claim.
Kellogg said he tends to agree with the court’s decision in Wal-Mart, except that “what the Supreme Court did went way beyond just Wal-Mart. It found that most class actions were going to be like Wal-Mart — unworkable.”
The other decision often cited by plaintiffs attorneys came in AT&T Mobility v. Concepcion when the court found federal laws favoring binding arbitration trump state consumer protection laws.
“This idea that arbitration is expedient and cheap is not true,” Hall said. “The problem is these are not contracts entered into through negotiations. These are contracts that are jammed down the throat of the consumer. These arbitration clauses are not fair.”
Banks sued in Miami in multidistrict litigation for allegedly manipulating the sequence of transactions to maximize overdraft fees have sought refuge in the Supreme Court decision favoring arbitration.
Critics of the court also point to the Citizens United v. Federal Election Commission decision allowing corporations and unions to use their general treasuries to pay for political advertisements. The ruling allows political action committees to spend unlimited amounts of money on political ads without revealing their donors.
“This is the darkest court we have had,” said plaintiffs attorney Stuart Z. Grossman, partner at Grossman Roth in Coral Gables. “America is for sale, and our Supreme Court has really made it easier with their Citizens United decision.”
The pendulum of American politics has a way of leveling the playing field. The Supreme Court may strike down the health care law only to see Congress come up with a bulletproof version.
Kellogg said it’s ironic because “the Supreme Court is making it necessary for the government to grow if Congress wants to protect consumers.”