Supreme Court’s liberal ‘judicial putsch’ has Republicans in a frenzy

Conservatives challenge judicial supremacy

There is an entertaining pseudoscientific quality to much American sports coverage. As if the numerical deconstruction of a game and ability to put numbers on its smallest component can imbue the commentary with a different quality of insight.

And in politics too. Buyer beware. But, according to academics, the US supreme court this term, as of two weeks ago, had issued liberal decisions in 54 per cent of cases in which it ruled, and ahead of two remarkable liberal decisions on Obamacare (King v Burwell ) and marriage equality (Obergefell v Hodges). A court renowned for conservatism has this term ruled more liberally than any since that led in the 1950s and 1960s by chief justice Earl Warren (up in the 70 per cents).

The decisions have given an important lift to President Barack Obama's struggle for a substantive political legacy – in saving his landmark healthcare programme, which has extended medical care to millions, and granting gay couples the right to marry the court has struck hard at two core issues for Republicans and in the US culture wars. Justice Anthony Kennedy may have cast the decisive votes, but Obama will take the credit.

This is the same court that previously curbed affirmative action to redress racial inequality, invalidated attempts to ease voting for blacks, freed corporations to spend unlimitedly on political campaigns, and allowed businesses to compel arbitration in contracts that effectively precluded all remedies for illegal discrimination.

Conservative record

The same court which has held back abortion rights, upheld gun freedoms and the death penalty – it recently ruled against three death row inmates’ claim that the drug that would kill them would in the course of doing so cause immense pain because their lawyers did not offer the court an alternative painless drug.

And this was the court – substantially the same court – which, in 2000, is still believed by many to have “stolen” the presidential election for George W Bush from Al Gore.

This time, however, it is the Republicans who are crying foul and in language of the most extreme kind. Justice Antonin Scalia's minority judgment accuses – a bit rich, considering Bush v Gore – his colleagues in Obergefell of "judicial putsch".

And Senator Ted Cruz from Texas railed against "hubris and thirst for power", insisting the court threatens "the very foundations of our representative form of government". He will introduce legislation to provide for regular in/out votes by the electorate on the supreme court bench. "Today is some [sic] of the darkest 24 hours in our nation's history," he insisted.

Other Republican presidential candidates have joined the courtbashing. Mike Huckerbee, popular with the evangelicals, called for outright defiance of the court's decision in what he called "biblical disobedience", presumably a culturally specific form of civil disobedience. Comparing the decision with that in the notorious Dred Scott (1857) case – in which the "property rights" of slaveowners were upheld – he vowed that "as president, I will never bow down to the false gods of judicial supremacy".

Such pledges of open defiance of the courts would play rather poorly to an Irish electorate, but in the US . . .

On the right, a new war has opened up over “judicial supremacy”, a fundamental pillar of the division of powers in the US constitution, which holds the supreme court has the final say on what the constitution means. Abraham Lincoln and Thomas Jefferson are cited as witnesses for the prosecution.

Candidate Rick Santorum, followed suit, saying, "The stakes are too high and the issue too important to simply cede the will of the people to five unaccountable justices."

Bobby Jindal, the former Louisiana governor who joined the race this week, and who once promised to let creationism be taught as science in his state’s schools, attacked what he called the first step in an “all-out assault” on Christians’ religious liberty. He suggested that “If we want to save some money let’s just get rid of the court.”

The supreme court is now firmly in the crossfire of the presidential campaign, albeit not in the usual form of Democrats pleading for a vote to ensure their man will be able to shift the balance on the court. The irony is that infuriated Republicans already have their partisans on the court, most with impeccably right-wing credentials – how do you shift this court further right? How do you prevent someone whose record suggests he is perfectly attuned to Republican thinking from being swayed once appointed, à la Kennedy, by, horror of horrors, legal argument?

Cruz may have the answer – popular voting on judicial appointments and reappointments. Not unknown in the lower US courts, but most certainly, and rightly, anathema here.