We’re all holding our breath
You have to go back many years to try and remember a Supreme Court term when the American body politic was hanging on every word and nuance of a court decision. Perhaps it was Brown vs. Topeka Board of Education when the court threw out the “separate but equal doctrine” as being inherently unequal. Perhaps it was the Korematsu decision during World War II when the court stepped aside and let the government put people of Japanese origin, even when they were American citizens, into internment camps. Maybe even further back before the Civil War when the Supreme Court decided that slaves were just property, and if they happened to live in a free state, you could go get them and take them back courtesy of the Dred Scott decision.
All of those decisions impacted the course of American history and the direction the nation took from that point on. Brown led to years of battling over integration and is still being fought. Korematsu was not one of America’s finer moments and was a factor in the Civil Rights revolution, while Dred Scott drew lines in the sand so deeply that it made the Civil War seem almost inevitable.
Does today’s decision about Arizona’s immigration law and Thursday’s even bigger decision about Obamacare mark some sort of a historical shift? Or are they really only very significant because of the timing, a presidential election in November and an American population that seems pretty much split down the middle where almost anything could tip the scales one way or another?
The answer is simple. It’s much too early to tell, but there are some signposts.
Monday’s decision where the Supreme Court upheld the “show me your papers” part of the immigration law is, I suspect, going to have a profound reaction in the Hispanic community. There are going to be all sorts of claims of racial profiling and a lot of anger. If it’s enough to mobilize the Hispanics and the more progressive part of the Democratic base, then those votes could be critical in some of the battleground states that have larger Hispanic populations like Florida, Virginia, North Carolina, Nevada, New Mexico and Colorado. I can remember growing up with old World War II movies where the bad guys in the leather trench coat and nasty accents always said “show me your papers.” That question doesn’t resonate well with a whole lot of Americans.
I suspect that there is also going to be a pushback on the U.S. Supreme Court.
The court is supposed to be reasonably neutral, and decide on the law and the constitution. At best, lots of people now suspect that this court, typically a 5-to-4 court, with five Republicans on one side and four Democrats on the other, may be nothing more than an extension of the political battle going on in the country. Something very unusual also happened today when the Supreme Court announced their immigration law decision. Justice Scalia not only summarized his dissent, but also took on the president on his order to not deport certain young people who were brought here as infants.
What made it very unusual is that it had nothing to do with the case before the court, according to the New York Times; and legal scholars interviewed could not recall another instance where a justice commented on a political dispute outside of the case under consideration.
Tomorrow, the court is going to release the Obamacare decision. I’m guessing it’s going to be a bit of a compromise decision like today’s immigration decision. I think it was a compromise because the “show me your papers” decision was unanimous, 8 to 0, but at the same time the court indicated they would revisit the issue if there was racial profiling. My speculation is that’s what Scalia was so upset about. He wanted a harder-edged decision and he couldn’t swing Roberts and Kennedy.
Tomorrow’s decision will tell us how good I am at reading the tea leaves. The Supreme Court could throw out the entire Obamacare, uphold the entire Obamacare or find some compromise like throwing out the mandate and keeping the rest. I think Roberts and Kennedy don’t want this to go 5-to-4 because it could very well strongly effect America’s perception and belief in the objectivity of the Supreme Court. Many already feel that that it’s just another political institution, split between the Blues and the Reds, and all the talk about the constitution is just a bunch of verbiage to cover up a nakedly political decision.