H. Brandt Ayers: High court — Back to the ’30s
Apr 08, 2012 | 2525 views |  0 comments | 7 7 recommendations | email to a friend | print
Chief Justice John Roberts and his conservative acolytes on the Supreme Court are reminiscent of the court before 1937, which set about dismantling piece by piece the New Deal’s legislative response to the Great Depression.

This court’s mauling of the individual mandate in the health-care act, which is the only way the plan would work, clearly shows it prefers that the health industry be run by insurance companies, not by an agent of the people.

By the critical nature of questions in oral argument, the majority surely intends to overturn the act in whole or in part.

It remains to be seen whether that will be a self-inflicted wound, damaging to the court’s prestige, or whether it signals that this court’s mission is to protect business from government, as the court did from 1865 to 1937.

Lost in this grand Battle of the Titans is the practical effect of the defeat of “Obamacare,” that 30 million to 50 million families must live with the controlled terror that a serious illness would be financially devastating.

America alone among wealthy nations forces so many of its citizens to live a contingent life, perpetually poised between health and ruin.

That stark fact, plus the affordability of the plan, persuaded me to support President Obama’s plan. Why, for instance, would justices see an abridgment of freedom in requiring everyone to buy into the plan but don’t see individual rights trampled by requiring everyone to buy into the Social Security program?

As crucial as the answer to that question is, the Roberts Court poses a different question about the nature of this court and what effect the economic, political and popular condition will have on the court.

The earliest court from the founding to 1865 was primarily concerned with preserving the national government against all-devouring states. After the Civil War, the court concerned itself mainly with protecting business from government until 1937. It is the revival of this latter phase that the Roberts Court seems to want.

A Harvard professor of constitutional history, the late Robert McClosky, summarized the early 1930s court:

“The idea of a changeless Constitution, the idea of judicial review as an exact science, the idea that ‘dominant opinion’ is irrelevant, the idea that a nine-man court can and should save society from itself and the past from the present — these ideas were no longer rhetoric; they had become the wellsprings of action.”

A court with such a grandiloquent vision of itself ran head on into Franklin D. Roosevelt’s New Deal, the desperation of the Great Depression and the fury of frightened public opinion.

As the Civil War solved the nation-state argument, the Depression and the New Deal answered the question of economic control. Sensing that, an earlier Justice Roberts (Owen) switched sides and wrote the opinion upholding the Social Security Act of 1935.

It could be argued that business needed some leeway as commerce became continental and as an adolescent nation grew its industrial muscles, which in maturity would make it the mightiest economic power the world has known.

Of course, a court with its mind set would go too far as it did in striking down the Sherman Act of 1890 on the grounds that monopolies in manufacturing were allowed because it affected interstate commerce only “indirectly.”

Further evidence of this court’s excesses is found in its rather casual definition of corporations as “people” under the due process clause of the 14th Amendment.

The justices seemed to find it morally imperative to make the amendment into a haven where private rights and private property could be protected from the will of the majority.

To the eyes of this court, regulations of any kind, by states or Congress, smacked in the words of a prominent attorney of the time as the “onward march of Communism.”

Is that the “haven” Chief Justice Roberts would make of the current court? The answer is a qualified yes. He ignored two recent precedents reaching back to the 19th century to find that corporations are “people” in the Citizens United ruling.

That was the opinion allowing wealthy corporations, individuals and unions to spend unlimited amounts on political campaigns, thus making it legal for only the wealthy to shout loud enough to drown out the voice of the people.

Roberts is likely to have his way, given current members of the court, because of the president’s political errors. Obama lost his chance to get the public strongly on his side in the summer of 2009 when he hunkered down in Washington with his health bill while Republicans demonized the bill at town meetings, blaming him for everything including the Bush deficits.

The Obama administration has never — not even now — mounted a sustained and effective defense of Obamacare.

A strong, persuasive president with a hurricane of frightened public opinion at his back changed one vote on the court, and thus the court itself, allowing the New Deal to be born.

By his silence in the summer of 2009, Obama lost his chance to channel public anger and fear inspired by the Great Recession and thus any hope of affecting a court that, after all, does read the newspapers.

H. Brandt Ayers is the publisher of The Star and chairman of Consolidated Publishing Co.
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