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Bush v. Gore Rears Its Head: The Triumph of Politics Over Law (Part II)

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This article was originally posted on July 30, 2008 on Huffington Post.

Last week, The Senate Judiciary Committee held a hearing on the Supreme Court's recent decisions advancing corporate interests. Unfortunately, the politicization of the Roberts Court's jurisprudence extends well beyond cases advancing corporate power, and has polluted several areas of the law. The Court has run amok. Skewed by the appointment of its newest Justices in 2005, the institution has betrayed its institutional limits and actively championed controversial conservative political interests.

This article is the second in a series which began with The Politicization of Voting Rights. Part I argued that the Court's decision in Crawford v. Marion County (upholding an Indiana law imposing restrictions on the right to vote by adding new photo ID requirements) was jurisprudentially indefensible, a naked exercise of power by a Court that, across several contexts, appears to decide voting rights cases according to their partisan implications.

This article expands the analysis beyond voting rights, examining other recent decisions that rewrote longstanding constitutional doctrines while perpetuating racial marginalization, restricting reproductive freedom, diminishing political equality and politically entrenching established class interests. It also explores the limited comfort offered by the Court's occasional willingness to check the Executive. The Court's elevation of politics over law has eroded its own institutional legitimacy.

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Part III of this series will explore the failures of traditional checks on the Court, as well as ethical lapses by some Justices, suggesting intervention by the other branches. Part IV will present a specific proposal through which Congress and the incoming Administration could balance the Court and restore the Separation of Powers.

Voting Rights and Political Participation: Reversing our Longest Constitutional Trend

Despite the changing winds of politics, the expansion of the voting franchise has been one of our most consistent trends since the birth of the Republic. Whether through judicial rulings protecting voting rights, or constitutional amendments granting them to more people, democracy in America has steadily expanded: a system that initially included only white propertyholders now reflects broad popular inclusion with affirmative prohibitions on racial or gender restrictions. [1]

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On the one hand, many people (including half a million residents of the nation's capital) remain formally disenfranchised. And many problems beyond threshold participation (i.e., the narrow right to cast a ballot, regardless of whether and how it is counted) continue to plague the electoral process.

On the other hand, the march towards broader participation had long proceeded unimpeded – until the Roberts Court upheld Indiana's voter ID law this spring. As the Senate Judiciary Committee heard from Stanford law professor Pam Karlan two months ago, Crawford "may presage a repudiation of a century's worth of progress and commitment to expanding the right to vote."

Crawford was hardly the first time the Roberts Court has contrived legal rules to advance the Justices' partisan political interests. In 2006, it upheld most of the deeply controversial mid-decade redistricting in Texas masterminded by former House Majority Leader Tom Delay in League of United Latin American Citizens (LULAC) v. Perry, inviting free-for-all legislative self-entrenchment violating even the most minimal conceptions of procedural democracy.

Nor was Crawford the last such case. Only a few weeks ago, "[w]ealthy political candidates caught a break" when the Court in Davis v. FEC struck down "The Millionaire's Amendment" to the 2002 McCain-Feingold law. The law had allowed candidates for elected office to accept more money from campaign donors when confronting self-financed wealthy candidates who leverage their personal fortunes to mount political campaigns. In the decision's aftermath, wealthy candidates appear free to leverage their economic power to essentially purchase public office.

Crawford, LULAC and Davis illustrate how the Court contrives its jurisprudence in voting cases. In Crawford, the Court left Indiana's voters at the mercy of legislators willing to disenfranchise their opponents' supporters in order to entrench themselves in office. LULAC was similar, in that it allowed state legislators essentially unfettered discretion to trade regions of voters among themselves – again, for the sake of incumbent protection. But in Davis, the Court cited incumbent protection as a reason to strike down the law.

As Professor Rick Pildes explained: "[N]othing in the Constitution directly and expressly gives the Court the power to protect the process of democratic elections per se – to ensure that anti-competitive rules are not enacted – as opposed to protecting [only] the specific, enumerated, individual rights the Constitution guarantees." In Davis, "[t]he dissent, unlike the majority, stops at the individual-rights side of the analysis and essentially ignores the larger, more structural concern of whether this provision is a way for incumbents to entrench themselves." But in LULAC and Crawford, the Justices flipped positions, with the Court's moderate wing engaging in a functional, structural analysis that the conservative Davis majority rejected. [2]

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The Justices' inconsistent willingness to take seriously their responsibility to protect voters from legislative self-entrenchment is problematic in the first instance. Even worse is the Court's seemingly consistent commitment to impeding democratic access and advancing plutocracy: Crawford allows state legislators to limit who may vote; LULAC allows state legislators to arbitrarily change for which particular legislative seats voters in a specific geographic area can vote; and Davis grants an enormous tactical political advantage to wealthy individuals seeking elected office.

These political process cases, taken together, confer massive privileges to conservative political parties, candidates, and the particular political interests they (and apparently at least five Justices of the Supreme Court) share.

Social and Civil Rights: Covertly Turning Back the Clock

The trend towards politicized rulings extends beyond cases challenging the fairness and legitimacy of the political process. Last year, in the hot-button Carhart and Parents Involved cases, the Court reversed two longstanding principles governing fundamental rights – while disingenuously claiming to uphold them.

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Shahid Buttar is a civil rights lawyer, hip-hop MC, independent columnist, grassroots community organizer, singer and poet. Professionally, he directs a program combating racial & religious profiling at a non-profit legal advocacy and educational (more...)

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