May 7, 2012--The Roberts Court

Last August, when heckled in Iowa about corporate taxes, Mitt Romney famously shot back, "Corporations are people, my friend." 

He was not endorsing the Supreme Court's 2010 Citizens United decision which in effect said the same thing--that corporations, like people, are constitutionally allowed to make unlimited contributions to political action groups. The free speech provision of the Constitution, Justice Kennedy for the majority wrote, applies to corporations in their peopleness. (My word, not his.)

Romney added, "Of course they are. Everything corporations earn ultimately goes to people." He choose not to point out, however, that this barely applies people such as himself who earn $20 million a year and pay less that 15 percent in taxes.

Though he was not referring to the effect of Citizens United on the electoral process, he and his PAC groups have been major beneficiaries of the SC decision: hundreds of millions of dollars of unrestricted corporate campaign contributions have flowed to his PAC groups which in turn have been able to run seemingly unlimited numbers of negative ads attacking his rivals--first Republicans and now President Obama.

As a sidebar, this is also true for Obama's PAC groups, though the total amount of money raised by Romney supporters dwarfs Obama's by more than 3 to 1

In Citizens United v. Federal Election Commission, the Supreme Court held that corporate funding of independent political broadcasts in elections cannot be limited under the First Amendment, overturning previous SC decisions. In effect they ruled that corporations are people. 

This view of corporations is not new--it goes back to the earliest history of the United States, but the SC's allowing corporations to participate in this direct way in national elections is in fact quite new.

Meanwhile, the Roberts court is seemingly also set to continue chipping away at what might be construed to be other individual rights. 

They are hearing an appeal to uphold Arizona's strict new anti-immigration law--Senate Bill 1070. I say seemingly chipping away because during recent oral arguments it was clear to knowledgeable observers of the Court that at least five justices are prepared to sustain the appeal.

SB 1070 "requires law enforcement, when making a lawful stop, detention, or arrest for another law, to make a reasonable attempt to determine the person's immigration status where reasonable suspicion exists that the person is not lawfully present in the country."

It also authorizes a peace officer to arrest a person "without a warrant on probable cause that the person has committed a public offense that makes the person removable from the country."

If a majority does in fact uphold the essence of the Arizona law, at least 25 other states are set to pass anti-immigrant statutes of their own similar to SB 1070.

Then there is the Affordable Care Act, more widely known as Obamacare. 

The Court again appears poised to find much of it unconstitutional. Especially the individual mandate which requires everyone not already covered to purchase health insurance by 2014. 

The question in this case will center around the SC's contemporary interpretation of the meaning of the Commerce Clause of the Constitution.

Health care constitutes 18.2 percent of America's Gross Domestic Product and is truly interstate by even the most casual definition. One may be insured in Ohio but can receive treatment in California; one's medication may be manufactured in New Jersey but purchased and used in Florida; a CAT scan machine may be manufactured in Massachusetts but shipped to and used in Nebraska.

Other than defense spending nothing is more interstate than the health care industry.

So why shouldn't we expect the SC to rule overwhelmingly that the economics of healthcare is as interstate as the Army?

If previous Court decisions have held that even wheat grown on one's own farm for one's own use is controlled by the Commerce Clause (Wickard v. Filburn in 1942), why wouldn't it be consistent to conclude the same thing about national health care?

My view--because in regard to this matter and the others cited the Roberts court is making decisions based more on political ideology than a strict interpretation of the Constitution. 

For justices who claim to be "strict constructionists," as opposed to "legislating from the bench," these decisions are right out of the Republican playbook. 

Recall how a similar mix of conservative-ideologue justices ruled 5-4 in 2000 to take the presidential election out of the traditional hands of the states (specifically Florida) and, ignoring the 10th Amendment in Bush v. Gore, handed the presidency to George W. Bush.

Citizens United, SB 1070, and the Affordable Care Act are just the latest examples of what Justices Roberts, Scalia, Thomas, and Alito are doing to American history and traditions--trampling them.