Campaign for Stronger Democracy

It was a big week for the Supreme Court as some landmark decisions were handed down, including one invalidating some provisions in Arizona’s anti-immigrant law, a decision to not hear arguments and invalidate Montana’s law prohibiting some corporate political contributions, and finally, on Thursday, the long awaited decision on the constitutionality of the Affordable Care Act.

SCOTUSblog provided some amazing coverage of the Affordable Care Act decision as it came down, and continued to do so, sharing commentary and analysis for hours after the ruling. They have a layman’s translation of the decision. In short, the Affordable Care Act’s individual mandate to have health insurance survives as a tax, and the rest of the law is upheld as well. The only provision limited was the Medicaid expansion.

The decision, however, is fairly nuanced, and sets up some interesting arguments for the Court in years to come. The opinions issued do not present a 5-4 decision, necessarily, said Akhil Reed Amar, a constitutional scholar at Yale Law School to Ezra Klein of the Washington Post. The decisions come down more like 4-1-4. Klein explains:

One interpretation is that Roberts was playing umpire today: He was simply calling balls and strikes, as he promised to do in his Senate confirmation hearings. But as [Georgetown Law Professor Randy Barnett]’s comments suggest, the legal reasoning in his decision went far beyond the role of umpire. He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality.

While the Chief Justice’s opinions reached the same result as the more liberal/moderate wing of the Court, the reasons for reaching that opinion split in two different directions. The law was upheld on grounds that it is a tax, while the Chief Justice agreed with the dissenters that the law could not be upheld under the Commerce Clause of the Constitution.

Adam Winkler, professor of constitutional law at UCLA writes at SCOTUSblog about what this could mean in upcoming sessions:

Roberts may have voted to save healthcare because he wants to preserve the Court’s capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America’s commitment to civil rights for over forty years.

The Supreme Court’s approval rating has reached new lows in recent months as Americans have seen the institution as increasingly partisan. Perhaps the Affordable Care Act did a little bit to save the Court in the eyes of half of the public, but there’s a decent chance it did nothing to help itself in the eyes of the other half.

Today Justice at Stake, Brennan Center for Justice and the National Institute on Money in State Politics, released a report, The New Politics of Judicial Elections, which provides a great overview of some of the major issues impacting impartial justice in state level courts today, in particular, money, television advertising, and elections.

Money is the focus of the first chapter, and spending in state Supreme Court elections between 2000 and 2009 more than doubled the amount spent between 1990 and 1999. The second chapter looks more closely at television advertisements, noting that spending on ads has been increasing and in 2010, parties and independent groups accounted for almost 50% of TV ads, most of which were negative spots. The final chapter examines the implications of the 2010 elections, including attempts by state legislatures to challenge fair and impartial courts across the country.

The full report is certainly worth a read, and highlights very well the impact of money and advertising on state courts. Download the full report at www.NewPoliticsReport.org, and read the press release at Justice at Stake’s website.

Bert Brandenburg from Justice at Stake wrote an op-ed that ran in the Chicago Tribune today on the influence of money in judicial elections, and what that could mean for the judicial system as a whole.

Between 2000 and 2009, the money spent on judicial elections in the United States more than doubled from the amount spent in the 1990s ($83.3 million from 1990-1999, then $206.9 million from 2000-2009). He specifically mentions three Midwest states as being particularly large spenders, with Illinois judicial candidates and interest groups spending over $20 million in the 2000s. (Candidates & interest groups in Michigan spent $18.6 million while those in Wisconsin spent $14 million)

A possible solution to this influx of money in the judiciary, Brandenburg states, could be establishing stricter recusal rules and actually putting them on the books. A US Supreme Court decision, Caperton v. Massey, “challenged states to tighten their requirements,” but many states have moved backwards, including Wisconsin. Recusal at the US Supreme Court level is also gaining some traction from a group of Congressional Democrats.

In Wisconsin, state Supreme Court Justice David Prosser recently recused himself from a case involving a lawyer who had previously represented him in the recount efforts from this past April’s state Supreme Court election. Though Prosser recused himself from this particular case, the state of Wisconsin still does not have strict recusal rules in place and what will happen if a situation like this comes up again is uncertain. In addition to this conflict of interest, a noted physical confrontation has taken place between Justice Prosser and Justice Ann Walsh Bradley over a decision that the Court had made.

Ultimately, Brandenburg notes, Courts across the country need to show that they are not beholden to those who provide them with campaign cash, or else they risk losing the trust of the public:

“The real issue is much larger. The explosion in big-money campaigns means judges have to work harder to ensure that they are not viewed as ordinary politicians. Indeed, if the public loses confidence that their courts can be fair and impartial, it will be hard to win back.”