The books described by Cole say that we silly citizens are wrong to attribute the decisions of our Five Conservative Justices to partisan politics. They are just trying their very best to solve tough cases using the law as filtered through their generally conservative viewpoints. Here’s Cole:
They show that the reason so many cases are decided 5–4 is not so much that the justices are partisan or political in any simple sense, but that the cases pose genuinely close questions of competing values on which conservatives and liberals often disagree—such as the role of state and federal power, how best to pursue equality, the appropriate methods for interpreting the Constitution, and the place of courts in a constitutional democracy.
What Cole calls “values” are the core of politics. The decisions that rankle most are those that relate to the “place of courts in a constitutional democracy”. The Supreme Court gets to decide its role in government, as it did in Marbury v. Madison, when it took on the role of final arbiter of Constitutional limits on legislation and executive actions. It’s easy to read the understanding of the conservatives on the Court: laws that help the rich are fine, those that don’t help the rich are open to question, and should be struck down if they interfere with the exercise of power by rich people or fundamentalist Christians.
Power can mean manipulating government to give them tax breaks, favorable antitrust outcomes, and bailouts. It can mean setting up rules that give one group the edge over others in business transactions, as, for example, bankruptcy laws favoring derivatives over the claims of small creditors, which only benefit the hyper-rich and the financial sector. Or, it can mean the right to control the lives and bodies of employees and other people, or in the case of police, to kill without fear. In each of these cases, you can count on the conservatives to uphold the exercise of power.
That rule explains Hobby Lobby, which gives power over women’s insurance coverage to the filthy rich owners of the Hobby Lobby megacorporation. It explains the decisions upholding various pretend medical requirements on abortion clinics: fundamentalist Christians who demand those laws want control over women’s bodies. It explains why Citizens United and McCutcheon came out as they did: rich people want the freedom to manipulate the political system, and the five conservatives think this is just fine, no corruption here.
Cole manages to break out of his deferential stand to the Supreme Court at the end of his article when he points out that the Roberts Court has greatly limited access to the judicial system. The Warren Court acted as if its role was to protect people who could not protect themselves through the political process, he says, and the Roberts Court leaves the vulnerable unprotected. What could be more political than that?
The plain fact is that the academics and lawyers are perfectly happy to explain to one and all that the process works just fine, and eventually a Democratic President will have the opportunity to appoint a more liberal judge to tilt the Court the other way. They defend and protect this Court, and refuse to address the actual complaints of people who think the five right wingers are political hacks. They defend the current system in part because they, like the people who trained them and put them in their current positions, have pruned away their ability to examine the system impartially. Cole explains that his authors are “sophisticated”, but the fact is that they are deeply enmeshed in the existing system, and are incapable of understanding the anger generated by these five men and their determination to turn the country into a place dominated by wealth and firearms and acceptable religions.
My claim that these conservatives are political hacks is supported by the connection between their actions and their miserably bad opinions; it’s as if they aren’t even trying to justify their actions on any grounds other than raw power. It is supported by the claim at the beginning of the Cole article that these decisions would have been different if Al Gore had been made President. It is supported by the results: business wins, rich people win, fundamentalists win, and the rest of the country loses. Every time.
Probably public dissatisfaction with the Court is driven as much by Fox News rage because they aren’t crazy enough as by liberals angered by outcomes. Liberals can’t change the Court, and even when they manage to pass watered-down legislation like Obamacare, the five conservatives find ways to deny them victory. These old white men are playing with fire. They encourage the worst among us, they hand victories to the richest, and they leave the country impotent to change things.
And as a personal note to Professor Cole, there is no evidence whatsoever that any of the five conservatives believe that equality is a political value, or even a moral value.