Neil Macdonald: The predictability of the U.S. Supreme Court

The U.S. Supreme Court can be as uncompromisingly partisan as Congress, Neil Macdonald writes. President Obama might want to brace himself for Thursday's decision on his health-care law.

Consider this quote from a prominent U.S. commentator, discussing President Barack Obama's new immigration plan, the one that skirts Congress and offers temporary work permits to those illegal immigrants who were brought to the U.S. as children and have grown up American.

"The president said at a news conference that the new program is 'the right thing to do' in light of Congress's failure to pass the administration's proposed revision of the Immigration Act," declared the commentator.

"Perhaps it is, though Arizona may not think so."

The commentator, a legal expert highly esteemed by the nativist base of the Republican party, then went further, lacing into the majority on the Supreme Court for blocking Arizona's attempts to round up and further criminalize large numbers of illegal immigrants, Monday's decision having held that immigration is a federal jurisdiction.

"To say, as the court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind."

Pretty typical conservative punditry, really. A few mocking shots at Obama, leavened into a rather black-and-white view of what to do with the 11 million "illegal aliens," mostly Hispanics, who perform the vital service of doing America's scut work: toilet-cleaning, diaper-changing, ditch-digging, lawn-tending, etc.

Never mind that many of them are also parents of children who hold American citizenship, having been born here. An illegal is an illegal, and that's that.

You can tune into Fox News Channel, or Rush Limbaugh's radio show, and hear that sort of stuff pretty much daily.

In this case, though, the commentator was no cable-TV talking head. In fact, the quote is from a written dissent handed down Monday by Justice Antonin Scalia of the U.S. Supreme Court.

U.S. Justice Antonin Scalia, shown here delivering a 2010 speech in which he castigated lawmakers for being lazy and creating fuzzy laws that the courts had to sort out. (Morry Gash / Associated Press)

What's more, in taking the shot at Obama's statements at a news conference, Scalia wasn't even dealing with evidence before the court.

He saw Obama's comment on TV, presumably, and it irritated him, so he decided to enter it into high court jurisprudence.

A 5-4 court

Rush Limbaugh immediately cheered, using Scalia's "boggle the mind" quote to rally his millions of right-wing radio followers.

But what seems just as mind-boggling, at least to my non-American mind, is the utter predictability of the U.S. Supreme Court.

Routinely, the court splits along partisan lines in the same manner as this country's dysfunctional, no-compromise Congress.

On the left, justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. On the right, Chief Justice John Roberts and justices Clarence Thomas, Samuel Alito and Scalia.

Only one of the nine, Justice Anthony Kennedy, tends to vote issue-by-issue rather than ideologically, which makes him appear the only consistently independent thinker on the court.

As a result, he is often the tiebreaker, effectively giving him the final say over laws passed by legislatures and signed by presidents and governors.

By contrast, Justice Thomas sits on the bench in silence, looking bored and irritated. As of April, he hadn't asked a question in open court in six years, something he takes pride in.

Thomas, who is married to a prominent conservative activist with ties to the Tea Party, is as reliably right wing as Ruth Bader Ginsburg is left wing, the principal distinction being that Ginsburg participates in arguments made before the court.

Thomas has said he sees little if any value in bothering with oral arguments. He's only interested in written briefs. To him, it seems, there is little practical point to the court actually sitting.

Openly partisan?

The court's partisanship was never more questioned than when it stopped the 2000 election recount ordered by the Florida Supreme Court, thereby handing George W. Bush the election over Al Gore, who had won a greater share of the popular vote.

As for Scalia, he's so nonchalantly partisan — or else feels so above it all — that he famously went on a duck-hunting trip with Dick Cheney, in 2004, even as the court was deliberating on an appeal that the Republican vice-president had just lodged.

It's perhaps no surprise then that poll after poll suggests significant numbers of Americans disapprove of how the court does its job. An approval rating of between 40 and 50 per cent is the typical response.

Justice is supposed to instill a sense of deep respect in the citizenry and, one hopes, temper the partisanship of politicians.

But here, only a small percentage of Americans, when asked, express a great deal of confidence in their high court. Most seem to think the obvious, that the personal political views of the justices guide their decisions.

Frank Iacobucci, a former Canadian Supreme Court justice, agrees that partisanship is a determinant in U.S. high court decisions.

He says it reflects the basic divide in American society itself, and the country's revolutionary origins, which deliberately broke with the more detached British judicial tradition.

Iacobucci proudly notes the high approval rating Canada's Supreme Court enjoyed in his day — about 70 per cent — and which it continues to enjoy.

He told me that during his 13 years on the bench, "I had no idea what any of my colleagues' political background and preferences were, as a general matter.

"Their politics and political views," he said, "were not evident in their work. If they were there, they were so subtle that I missed them.

"Once you get appointed, you don't owe allegiance to the appointing author, you owe allegiance to the law."

That doesn't appear to be the widespread view here in the States, I'd have to say. Packing the court with either liberal or conservative judges is seen as a president's most profound power, given that the judges are appointed for life.

In fact, if the Supreme Court rules Thursday against Obama's signature policy achievement, the Affordable Care Act (known colloquially as Obamacare), it may have less to do with the constitutionality of the law than with the fact that Obama has so far been able to appoint only two judges, both of them liberals replacing retired liberals.

The entire country awaits the court's decision. And I can predict the political reaction right now.

If Obamacare is upheld, Republicans will denounce the court for "judicial activism," or some other such sin. If the court overturns the law, they will praise the justices for adhering wisely to the wishes of the founding fathers.

Ditto the Democrats, just in reverse.


Neil Macdonald is a former foreign correspondent and columnist for CBC News who has also worked in newspapers. He speaks English and French fluently, as well as some Arabic.