Monday 20 January 2020

Hugh O’Flaherty: Supreme Court may be the uniting force

THE Supreme Court of the United States is a powerful institution. With its power to strike down legislation, its decisions can have very far-reaching effects. Take the 2010 decision in Citizens United where it was held there should be no restrictions on the amount of money corporations can give for political advertising because such restrictions impede the constitutional guarantee of free speech.

The court is perceived as being split into four conservative and four liberal wings, with one "swing" vote. So it was in the Citizens United case. It was thought that the decision would favour the Republican Party since it generally did best in getting donations from rich business interests.

President Obama was not pleased and used his State of the Union address to voice his disagreement. He said: "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests including foreign corporations to spend without limit on our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

However, listening to the commentaries in the course of the election it seemed to me that the Democrats landed more killer punches on Mr Romney than did the Republicans on the president.

When the Affordable Care Act was challenged before the court, it again appeared to divide the conservatives and the liberals. Chief Justice Roberts upheld the constitutionality of the act because he regarded it as within the taxing power of Congress. His was the "swing" vote on this occasion, though he was, of course, a Republican nominee.

How has this split come about?

Jeffrey Toobin in his recent book, 'The Oath (The Obama White House and the Supreme Court)', has this explanation: "Starting with Ronald Reagan and proceeding through both sets of Bush years, Republicans demonstrated a profound commitment to their vision of the constitution.

"There was a Republican judicial agenda for change: expand executive power, end racial preferences intended to assist African Americans, speed up executions, prohibit all forms of gun control, welcome religion into the public sphere, deregulate political campaigns and, above all, reverse Roe v Wade and allow states to ban abortion . . . Republican legislators fought for their party's judicial nominees and obstructed and harassed democratic nominees to the courts, even uncontroversial ones."

Things were not always so. In 1953, President Eisenhower appointed Earl Warren Chief Justice. Warren had been the Republican governor of California, but proved to be a very liberal judge.

Eisenhower did not always agree with the decisions of the Warren court, but he accepted his constitutional responsibility to "take care that the laws be faithfully enforced".

Mr Obama has already made two outstanding appointments to the court: Justices Sonia Sotomayor and Elena Kagan. He is likely to be in a position to make more.

While the justices hold office for life, some do retire before death. So Justice Souter retired at 70, though Justice Stevens continued until almost 90.

Four of the nine justices are in their mid-to-late 70s, so the likelihood is that the president may have the entitlement to nominate up to four justices to the court.

The Chief Justice may want to bring about a more united court – he has said he would like it to render unanimous decisions.

The unity that the president seeks to bring about in the nation may also occur in the court.

Huge O'Flaherty is a former Irish Supreme Court judge

Irish Independent

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