Is the U.S. Supreme Court a bastion of Republican extremism?
by Jon and Marcia Gottschall
In June 2012, in a 5-4 decision, the United States Supreme Court upheld one of the most important acts of Congress in the last half century, the Patient Protection and Affordable Care Act (“Obamacare”). The decision, in which Chief Justice John Roberts joined four more liberal colleagues in invoking Congress’s taxing authority to uphold a contested provision of the Obamacare legislation, was significant not only in allowing a major change in the organization of American health care to go ahead but also in its potential impact on future legal rulings and on the status of the Supreme Court itself.
Judicial review has been controversial in the United States through much of the 210-year history of its exercise. This has rarely been truer than in the present era when appointments to the federal courts have been intensely contested. As a result of the political nature of U.S. judicial appointments, in which the president nominates with the Senate’s “advice and consent,” the U.S. Supreme Court remains fairly well aligned with the voting public. The eminent political scientist Robert Dahl wrote in 1957 that the Court functions best not as a defender of minority rights but as a legitimizer of majority coalitions and the norms of democratic governance.
American history shows two major exceptions to this alignment. The so called “Laissez Faire” Court (1895–1937) blocked legislative reforms spawned by the Progressive movement including two federal child labour laws, the progressive income tax and the first federal antitrust statute. Later, the Court struck down 12 congressional acts, including the Agricultural Adjustment Act and the National Industrial Recovery Act, which were part of Franklin Roosevelt’s New Deal effort to resuscitate the economy.
This period of conservative activism, which ended in 1937, was followed by a period of liberal activism that reached its peak in the 1960s and early 1970s under Chief Justice Earl Warren and in the early part of the term of his successor, Warren Burger. The Warren and early Burger courts desegregated the nation’s schools, extended most of the federal Bill of Rights to the states, upgraded the rights of the accused and prisoners, reformed the U.S. electoral system through the one-man-one-vote rule, outlawed official prayer in the schools, recognized rights to contraception and abortion, protected the rights of women and, for a time, abolished the death penalty, all in advance of majority opinion of the day.