Wednesday, June 20, 2012

The New Roger Taney?

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Chief Justice John Roberts did not get to pick the Bible he held to administer the oath of office to President Obama, but he may well not be pleased with the symbolism inherent in his administering the oath with the same Bible Chief Justice Roger Taney used to swear in Abraham Lincoln.  After all, today Roger Taney is easily the most reviled Chief Justice in the history of the United States.  While there are some revisionists, including present Associate Justice and right wing provocateur Antonin Scalia, who try to defend Taney's record - excluding the central piece of his legacy, the Dred Scott Decision - to most people with even a cursory sense of American legal history, Roger Taney doesn't have any serious competition as the worst Chief Justice in our nation's history.  John Roberts may be about to put that designation into doubt.

Lincoln had been highly critical of Taney after the Dred Scott decision, and Obama was the first President to be sworn in by a Chief Justice whose confirmation he had voted against.  It's not hard to tell which of the two combatants history has sided with in the first instance.  Roberts has to be hoping that he, unlike Taney, doesn't end up being viewed as a Chief Justice with no sense of the historical moment presiding over a highly partisan court on the wrong side of history. 

When John Roberts went before the Senate Judicial Committee for his confirmation hearings, he claimed that he had no agenda, that he would be a non-partisan Chief Justice.  Famously he compared himself to an umpire calling balls and strikes, but not batting or fielding, which he presumably left to Congress and the President.  He seems not to have foreseen the attention a case like the one concerning the Affordable Health Care Act could bring to the Justices and to the Court as he suggested that "Nobody ever went to a ball game to see the umpire."  Well, guess what: all eyes now are on the Court, especially on Justice Kennedy and the Chief Justice himself, the only two conservatives who in the popular mind might conceivably jump off the partisan band wagon and vote to sustain the Administration's health plan.  If no one knows what to expect, it doesn't change the fact that to anyone interested in the Court, this seems the most hopelessly partisan constitution of justices any living person has ever seen.  Both sides have calcified into unchanging, idealogical blocks.
To show what a problem Roberts has controlling his court: at least four of his Justices, including the liberal Justice Ruth Ginsburg, have been criticized for inappropriate political activty outside of the Court.  Three of the conservative Justices, Alito, Thomas and Scalia, have not only attended political fund raisers, but they have even spoken at such events, lending the prestige of their position on the court, to raise money for such right wing partisan groups as The American Spectator, The Intercollegiate Studies Insitute and the Koch Brothers political corporate network.  To be absolutely clear, this sort of political behavior is forbidden to all Federal Judges in the United States, except to the Justices of the Supreme Court who have exempted themselves from having to follow our nation's Judicial Code of Conduct which expressly says that “... a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose...."  Since the Supreme Court Justices enjoy by virtue of their office by far the greatest prestige of any Federal judges, it would make sense that they would be the judges most urgently held to this standard, which instead of following they have decided to ignore.  Alito has gone so far as to tell ThinkProgress's Lee Fang that "it was not important", referring to the lending of his prestige as a Justice of the Supreme Court to the fund-raising efforts of The American Spectator, an organization which among other goals seeks to block confirmation of President Obama's judicial appointments. 

The non-chalance with which Justice Alito deals with his political fundraising suggests how comfortable the three right wing Associate Justices are with the public perception of them first and foremost as political partisans who use their Supreme Court opinions as their platform and their decisions as their political weapons of choice.  They are confident of the rightness of their cause.  They are not given pause by the fact that they are viewed by many Americans as having - against all their previous support of States Rights over Federal Perogative - intervened in Florida's State Judicial process to force upon the nation a President who ended up leading us into a costly war over the clear winner of the popular vote.
But is Chief Justice Roberts also comfortable with the partisan label which is beginning to stick to him?  Is Roberts unaware that like Taney before him he is in danger of being viewed as an inveterate obstructionist allied to special interests determined to block the most vital historical forces animating the present moment?  Both Chief Justices first served in the executive branch in politically partisan positions, Taney as first Andrew Jackson's Attorney General - from which position he fought against free blacks becoming citizens and supported South Carolina's prohibition against any freed blacks entering the State - and then as a recess appointment as Jackson's Secretary of the Treasury.  When the Senate overturned the appointment, Jackson went ahead and nominated Taney for a position as an Associate Justice on the high court.  The Senate refused to confirm him, but when the composition of the Senate changed and the Chief Justice position opened up again, Taney won confirmation to the higher position.   Roberts worked in the Attorney General's Office and in the Office of the White House Counsel under Reagan.  Under George H. W. Bush, he argued cases in front of the Supreme Court from the Solicitor General's office.  He too was first nominated for an Associate Justice position before the Chief Justice postion opened up and Bush gave him the nod.

Both Chief Justices are best known for decisions taken that have highly partisan implications at a time when the nation is fiercely divided.  For Taney, of course, it was the Dred Scott decision at a time when the nation was not only divided between North and South but also between Republicans for whom the restriction of slavery to areas it was already established was of primary importance and Democrats who were for appeasing the South to hold the Union together. For Roberts the case which has defined his Court so far is Citizens United.   In a 5 to 4 decision along the usual line, the Court delighted Republicans and horrified Democrats by re-establishing the rules of campaign financing to give a permanent institutional advantage to conservative interests.

As with the Dred Scott decision, Citizens United exacerbated a well-identified long-term problem, slavery in the first case and the influence of money in Washington in the second, while leaving Congress no tools with which to address it. 

Unlike Chief Justice Taney though, Roberts has a second case to preside over with which he can temper the view of himself as a partisan Chief using his office as a tool of the Republican party; or he can face the danger of cementing the image of himself as a second Taney wielding power to serve not the Constitution but a rigidly idealogical political faction on the wrong side of history. 

The upcoming case follows the exact same template as the earlier ones.  It offers a controversial, if so far little understood, solution to a problem with huge long term consequences.  If this attempted solution is overturned, there will be no politically viable way for Congress or the President to deal with the escalating price of health care, either from the perspective of controlling run away costs or paying for the medical coverage of the uninsured.  It's no telling how long it will take Congress to again find the political will to deal with a seemingly intractable problem.

Obama's legacy may in large part depend on how Roberts votes as does the legacy of Roberts himself, but Roberts should remember that after the Dred Scott decision, Roger Taney was the one in power, and Lincoln was left to criticize him from the outside. Still in the judgement of history Lincoln is a giant and Taney is the undisputed worst Chief Justice of all time.  Chief Justice Roberts may be the first Chief Justice in position to relieve Taney of that distinction.

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