Arizona, Obamacare, and SCOTUS elections

The U.S. Supreme Court handed down two momentous decisions this week. Firstly, in Arizona v. United States, it gutted much of Arizona’s draconian immigration law (SB 1070) which gave state law enforcement the power to stop anyone and ask them to prove their status as a citizen or legal immigrant. The Supreme Court struck down the more heavy-handed provisions as intruding on powers constitutionally granted to the Feds by a series 5-3 and 6-2 votes (Kagan recused, and the other three Democratic appointees were joined by Roberts and Kennedy, and, on one provision, Alito). They did, however, unanimously agree on the constitutionality of the stop-and-search provisions, and the fact that the law clearly targets Mexicans and Mexican-Americans doesn’t matter, as a series of precedents going back to the mid-1970s (damn Nixon appointees!) have made it virtually impossible to get any law struck down as violating the Fourteenth Amendment on the grounds that it is applied in a racist manner.

The Arizona law is part of an upsurge in anti-immigrant and anti-Latino/a rhetoric on the American right. This upsurge began seemingly for no reason in 2006 (although it did conveniently distract from the Republicans’ unpopularity at the time), and quickly reached the point where prominent conservative bloggers were accusing politicians from their own side of selling out American’s interests. (In one memorable example, Michelle Malkin displayed on her website a 100-peso note depicting President Bush with a moustache and wearing a sombrero.) In the last two years, Arizona and Alabama have enacted similar laws purporting to give state officials the power to police immigration matters and judging by the number of states which filed amicus curiae briefs in support of Arizona (nine, plus the Northern Mariana Islands), more could be planning similar crackdowns.

The decision in Arizona v. United States will likely only be a symbolic one for immigrants and their allies. The same administration which took Arizona to the nation’s highest court has deported one million undocumented immigrants (mostly Latino/a) in just over three years. Earlier this month, it defended in court armed federal officials who pointed a gun to the head of an eleven year-old Latina girl during a drug-related raid. And then there’s the Fast and Furious-gate scandal, in which D.C. has been found to have been fuelling the drug-related border violence which many Mexicans move north to get away from. The severity of the anti-immigrant measures taken by the Obama-Brewer axis has ensured that net migration from Mexico to the United States has fallen below zero. It will take more than the striking down of parts of a state law to bring back the glory days of the poor, tired, huddled masses.

The second case was the one regarding Obamacare. I predicted that the provision requiring virtually every American adult to purchase health insurance would be upheld as permissible under the Commerce Clause by a margin of 6-3 (the four Democratic appointees being joined by Kennedy and Roberts). The result was quite different: 5-4 (Kennedy dissented), but the provision was justified under Congress’ power to tax despite it violating the Commerce Clause. Most of the rest of the law stays in place.

I read in the weeks leading up to the decision that some of the conservative justices might uphold Obamacare because they could endanger certain Republican policy ideas by asserting and strengthening the Commerce Clause. It seems that Chief Justice Roberts found a way around this problem by endorsing the idea of the mandate as a tax, rather than as a regulation of interstate commerce; because of his hedging, there is a 5-4 majority against Obamacare’s compliance with the Commerce Clause. Watch out for a future liberal-leaning SCOTUS striking down a Republican administration’s efforts to implement school vouchers or health care vouchers or to privatise social security on this ground.

The debate around the case has been excruciating. Liberals have put forward conceptions of the rightful powers of the federal government which include compulsory military service, something which their ideological forebears risked life and limb protesting against in the 1960s and 1970s. They have also found themselves defending a law which forces people to buy a product from the same large corporations they accuse of profiteering. Conservatives have opportunistically opposed this expansion of Washington’s reach, but seem to forget about the Commerce Clause when it comes to enforcing reactionary social mores. (Case in point: Justice Scalia, who concurred in Gonzalez v. Raich that the Feds could stop California from legalising marijuana cultivation for private consumption, but seven years later finds Obamacare unacceptable in its entirety.) In the end, the nation’s highest court has handed down an ambiguous decision which somewhat protects its (and its Chief Justice’s) impartial reputation and avoids accusations of attempting to influence the upcoming presidential election, while providing for many unintended consequences down the track.

The controversy surrounding Obamacare has caused many to rehash the old debate about judicial interference in public policy matters, a debate which has moved in and out of the forefront of American life since Marbury v. Madison. President Obama himself weighed into this a few months ago, tentatively suggesting that the will of the legislative branch should be considered alongside any constitutional concerns that the Justices might have about the law. For this, he earned rebukes from the same conservatives who have built an entire literature about ‘judicial activism’. The conservative critics of so-called ‘judicial activism’ and the liberals who fret about the supposed partisanship of the five Republican-appointed SCOTUS Justices (but never the partisanship of their four Democratic-appointed colleagues) have in common a conception of the role of the judiciary which is elitist, apolitical, and unrealistic. They demand that judges be impossibly impartial and insulated from the political climate around them.

The bête-noire of those with such a conception of the judiciary is judicial elections – one of those peculiarly American devices which a certain type of cosmopolitan, New York Times-reading American finds embarrassing and provincial. Just look at this article in the aforementioned newspaper, which talks gushingly of the exams that French magistrates must pass before serving, which are contrasted with the judicial elections used in some U.S. states. Three members of Iowa’s Supreme Court recently received the John F. Kennedy Profile in Courage Award for legalising same-sex marriage and then being voted out of office. Electing judges, according to its critics, invites partisanship, populism, and demagoguery, but no-one advocates abolishing elections to the legislative and executive branches for the same reason. The Supreme Court, by contrast, is chosen by presidential nomination, American Bar Association vetting, and senatorial confirmation, but still throws up partisan appointees (the current 5-4 split), justices subject to political pressure (the New Deal-era ‘switch in time that saved Nine’), unqualified nominees (Harriet Miers, Robert Bork…), and morally outrageous decisions (Dred Scott, Plessy v. Ferguson, the WWII internment of Japanese-Americans…).

Judicial elections emerged in the United States during the Jacksonian era, when they were seen as necessary to preserve the independence of the judiciary against the legislative and executive branches. Nowadays, special interests such as the various state Bar Associations lobby for their abolition in order to insulate judges from public opinion. The result of successful campaigns to abolish judicial elections is that the politics is simply moved behind closed doors, and partisan elected officials are supposed to impartially select meritocratic judicial nominees. Needless to say, appointing judges doesn’t remove the politics of judicial selection nor does it result in better adherence to the laws and constitutions of the several states. Opponents point to unsavoury electoral contests in which judges have campaigned on their record of executing more criminals, but never explain how this is more disturbing than demagogic, ‘Tough on Crime’ appeals made by candidates for other branches of government (such as the Willie Horton ad, or Bill Clinton suspending his 1992 campaign to sign the death warrant of a mentally retarded African-American man).

If the Supreme Court were elected, all Americans would be able to determine the direction of their highest court’s jurisprudence, not just the special interests which have the power to sway the vote of one of the hundred members of the Senate. If the Founders had instituted federal-level judicial elections from the beginning, we would probably have avoided Dred Scott, corporate personhood, Plessy v. Ferguson, the various cases affirming state-level eugenics programs, and the post-1970s rise of mass incarceration of black and Latino men. We could triple the Court’s size (to twenty-seven) and elect them for renewable six-year terms. Parties would put up slates of candidates (the literature suggests that partisan judicial elections are better) and a nationwide vote using an open-list form of proportional representation could be used. This way, the interpreters of the constitution would be chosen not by the President, Senate, and American Bar Association, but by the people themselves.