[F]ewer voters than ever view the high court positively. . . . The latest Rasmussen Reports national telephone survey of Likely U.S. Voters shows that 28% give the Supreme Court good or excellent ratings. Nineteen percent (19%) rate the highest court in the land as poor.
Admittedly, this poll was conducted by Rasmussen Reports, a conservative polling firm with a history of inaccuracies. Nevertheless, Rasmussen’s finding is consistent with other polls showing that Americans increasingly believe that, despite the fact that the justices’ very legitimacy stems from their ability to apply the law fairly and independent of partisan concerns, the Court’s decisions are driven in large part by politics.
Certainly, the Supreme Court’s five conservatives have done nothing to disabuse the American people of this unfortunate perception. To the contrary, the Roberts Court has consistently pushed an ideological agenda from the bench — often despite decades of precedent to the contrary:
- Citizens United: Any discussion of the Roberts Court must begin with its most significant case to date — it’s decision to unleash billions of dollars of corporate and other big dollar election spending in Citizens United. Citizens United did not simply overrule a twenty year-old precedent in order to strike down a sixty-three year-old ban on corporate election buying, it was also a huge gift to the Republican Party. Seventeen of the top twenty donors this political cycle are conservatives.
- Forced Arbitration: Citizens United isn’t even the Supreme Court’s biggest gift to powerful corporations. That honor most likely goes to the Court’s forced arbitration decisions, which allow corporations to force their workers and consumers to sign away their right to hold the corporation accountable in a real court and instead force them into a privatized arbitration system that overwhelmingly favors corporate parties.
- Divide and Conquer: Just as significantly, the Supreme Court effectively immunized corporations from consumer class actions by empowering those corporations to force consumers to give away their right to bring such actions before they can buy any product. Class actions, which allow multiple plaintiffs to join together in the same lawsuit, are often the only way to recoup small-dollar loses from a corporate defendant because the value of such small dollar damages is much less than the cost of pursuing the lawsuit outside of a class action. In other words, the Supreme Court gave corporate America a license to cheat its customers a few dollars at a time.
- War on Workers: In its much maligned Ledbetter decision, the justices flouted a unanimous 1986 precedent to make it nearly impossible for women to enforce their right to equal pay for equal work. After this decision was overruled by Congress, the justices showed even deeper contempt for the law by stripping many older workers of their ability to fight age discrimination. Sens. Chuck Grassley (R-IA) and Tom Harkin (D-IA) recently introduced a bill to correct this second era.
So it is easy to understand why the American people are increasingly skeptical of a conservative Supreme Court that appears much more interested in advancing a political agenda than it does in applying the law. Next week, the justices can either show that they are still capable of respecting the Constitution by applying the nearly 200 years of precedent establishing that the Affordable Care Act is constitutional, or they can reveal themselves to be nothing more than politicians in robes by accepting an anti-health care argument that, in the words of conservative Judge Laurence Silberman, has no basis “in either the text of the Constitution or Supreme Court precedent.”