How dare President Obama brush back the Supreme Court like that? Has this former constitutional law instructor no respect for our venerable system of checks and balances? Nah. And why should he? This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes. All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief. President Obama never should have waded into the health care thicket back when the economy was teetering. He should have listened to David Axelrod and Rahm Emanuel and not Michelle. His failure from the start to sell his plan or even explain it is bizarre and self-destructive. And certainly he needs a more persuasive solicitor general. Still, it was stunning to hear Antonin Scalia talking like a Senate whip during oral arguments last week on the constitutionality of the health care law. He mused on how hard it would be to get 60 votes to repeal parts of the act, explaining why the court may just throw out the whole thing. And, sounding like a campaign’s oppo-research guy, he batted around politically charged terms like “Cornhusker Kickback,” referring to a sweetheart deal that isn’t even in the law. If he’s so brilliant, why is he drawing a risible parallel between buying health care and buying broccoli? The justices want to be above it all, beyond reproach or criticism. But why should they be? In 2000, the Republican majority put aside its professed disdain of judicial activism and helped to purloin the election for W., who went on to heedlessly invade Iraq and callously ignore Katrina. As Anthony Lewis wrote in The Times back then, “Deciding a case of this magnitude with such disregard for reason invites people to treat the court’s aura of reason as an illusion.” The 2010 House takeover by Republicans and the G.O.P. presidential primary have shown what a fiasco the Citizens United decision is, with self-interested sugar daddies and wealthy cronies overwhelming the democratic process. On Monday, the court astoundingly ruled — 5 Republican appointees to 4 Democratic appointees — to give police carte blanche on strip-searches, even for minor offenses such as driving without a license or violating a leash law. Justice Stephen Breyer’s warning that wholesale strip-searches were “a serious affront to human dignity and to individual privacy” fell on deaf ears. So much for the conservatives’ obsession with “liberty.” The Supreme Court mirrors the setup on Fox News: There are liberals who make arguments, but they are weak foils, relegated to the background and trying to get in a few words before the commercials. Just as in the Senate’s shameful Anita Hill-Clarence Thomas hearings, the liberals on the court focus on process and the conservatives focus on results. John Roberts Jr.’s benign beige facade is deceiving; he’s a crimson partisan, simply more cloaked than the ideologically rigid and often venomous Scalia. Just as Scalia voted to bypass that little thing called democracy and crown W. president, so he expressed ennui at the idea that, even if parts of the health care law are struck down, some provisions could be saved: “You really want us to go through these 2,700 pages?” he asked, adding: “Is this not totally unrealistic?” Inexplicably mute 20 years after he lied his way onto the court, Clarence Thomas didn’t ask a single question during oral arguments for one of the biggest cases in the court’s history. When the Supreme Court building across from the Capitol opened in 1935, the architect, Cass Gilbert, played up the pomp, wanting to reflect the court’s role as the national ideal of justice. With conservatives on that court trying to block F.D.R., and with Roosevelt prepared to pack the court, the New Yorker columnist Howard Brubaker noted that the new citadel had “fine big windows to throw the New Deal out of.” Now conservative justices may throw Obama’s hard-won law out of those fine big windows. They’ve already been playing Twister, turning precedents into pretzels to achieve their political objective. In 2005, Scalia was endorsing a broad interpretation of the commerce clause and the necessary and proper clause, the clauses now coming under scrutiny from the majority, including the swing vote, Justice Anthony Kennedy. (Could the dream of expanded health care die at the hands of a Kennedy?) Scalia, Roberts, Thomas and the insufferable Samuel Alito were nurtured in the conservative Federalist Society, which asserts that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” But it isn’t conservative to overturn a major law passed by Congress in the middle of an election. The majority’s political motives are as naked as a strip-search.
