The Supreme Court is hearing arguments on the constitutionality of the Affordable Care Act, so it’s time for another edition of Kombat! Kourt for Kids. In today’s meeting of the KK—dammit! Okay, Kombat! Kourt for Kids is now called Kombat? Judiciary for Kids, and today’s meeting of K?JK is about Antonin Scalia. He is still waiting for someone to bring him Solo and the Wookie. He also did not realize that being a Supreme Court justice would require so much reading. In an exchange with Deputy Solicitor Edwin Kneedler last week, Scalia expressed his incredulity that people might expect him to read the entire Affordable Care Act before ruling on it. “Is this not totally unrealistic?” Scalia said. “That we’re going to go through this enormous bill item by item and decide each one?”
Okay, Antonin Scalia, the American people will make you a deal: you read the entire Affordable Care Act, and we’ll give you a job for life that you can’t be fired from no matter how much of a glistening asshole you turn out to be. The justice’s intransigence would be more palatable were the Supreme Court not such a nakedly partisan instrument just now. In certain decisions, it has shown an almost fanatical commitment to liberty and limited government. Early indications suggest that the Supremes will decide the federal government does not have the power to make people buy health insurance, and of course there was their recent decision that money is speech and speech is so important that campaign finance restrictions are unconstitutional.
That’s an ideological commitment to individual rights, right there. Of course, parties implicated in both rulings happen to be enormous corporations. When it comes to actual individual people, the court is less committed. Yesterday, by the increasingly epithetic 5-4 vote, the Supremes approved strip searches for any offense, including violating dog leash laws. The same people so committed to the First Amendment that they’re willing to let the possibility that money might be speech wreck the American electoral process do not believe the Fourth Amendment prohibition against unreasonable searches prevents cops from looking in your rectum when you’re caught riding a bicycle without a bell.
It’s hard to arrange these opinions into a coherent philosophy of American law. If you consider them as a philosophy of American power, though, the principles become perfectly clear. The Supreme Court regards the law as an instrument for justifying existing power structures. It is unconstitutional for the US government to restrain the power of corporations to influence elections—or indirectly restrain the power of health insurance providers to squeeze the market—because the First and Tenth Amendments guarantee certain liberties even when we don’t like the results. It’s fine, however, for police to strip search a nun for trespassing at a protest, because “courts are in no position to second-guess the opinions of correctional officials.”
Read that paraphrase of Anthony Kennedy’s opinion again. If the justice really does not believe that he is in a position to question the actions of people who run jails, then the entire purpose of the Supreme Court is lost. In its corrosive commitment to the liberty of corporations and its cynical disinterest in the rights of individuals—in its horror that checkbooks might be silenced, coupled with its unconcern at, say, the first extrajudicial execution of a US citizen—this Court has not functioned as an instrument in the balance of powers. It has served only the balance of parties.
As a check against the power of Congress and the executive branch, the Supremes have been marvelously inconsistent. Cops can order you to take your clothes off for any reason and the President can use a flying robot to burn an American citizen alive, but nobody can put a cap on Sheldon Adelson’s campaign spending. It’s a muddled view, but as a check against the power of one political party, the present Supreme Court snaps right into focus. It’s no secret which party likes jails and aerial drones, just as it’s no secret which party benefits most from super PACs and which one liked the Affordable Care Act.
That’s why Antonin Scalia won’t read the law on which he’s ruling. He already knows what it’s about anyway, and he already knows his opinion on it. He’s a hack judge on a kangaroo court, and all he really needs to do is use what justifications he can muster to help the people he likes by any means necessary. And that, kids, is how you ruin a constitutional republic.