Karl Rove’s Supreme Court

by Randy Shaw on June 26, 2012

As the nation awaits the Supreme Court revoking all or part of the landmark health care law, Karl Rove’s control of the Court’s agenda is clear. Rove’s core goals since George W. Bush became President are threefold: unleash unlimited campaign spending, defund unions, trial lawyers and other key Democratic contributors, and limit challenges to unbridled corporate power. Rove picked Roberts and Alito to enact this political agenda, which they have done. Rove had no problem with the Arizona immigration ruling, which supposedly showed that the Court majority is more than Republican political activists; he wants Republicans to attract Latino votes and Bush backed immigration reform through 2007. I know from my years in law school and as an attorney that many still believe that federal judges base decisions on legal analysis not politics, but Rove and the current Supreme Court have dealt a death blow to such naiveté.

Although the pledge of allegiance says that this is a nation with liberty and justice for all, our history says otherwise. While high school students learn about Brown v. Board of Board of Education and other liberal rulings, the Supreme Court throughout much of its history has protected slavery, corporate power, and the denial of voting and other constitutional rights to African-American United States citizens.

Republican political strategist Karl Rove understands the Supreme Court’s historic role. He used Bush’s presidency to remake the Court to reflect century-old predecessors that found child labor laws unconstitutional and privately consulted with corporate officials before reaching decisions (J. Anthony Lukas’ The Big Trouble details these illegal ex parte communications, in the greatest book about the U.S. in the 1890’s through the Progressive Era that few have read).

Most Supreme Court justices from the Civil War to the 1920’s were corporate executives appointed to protect powerful financial interests. The Roberts court majority are legal political activists recruited, trained, and then appointed to federal judgeships by Republican politicians.

Fulfilling Rove’s Agenda

The best evidence that the Roberts Court is consciously implementing Rove’s agenda is its pattern of issuing rulings that go well beyond the facts before them.

Last week, Judge Alioto and the activist majority overturned sixty years of legal rulings in holding that unions must seek approval before using members dues money for a special political fund. Note the similarity between Alioto’s words and those of the National Right to Work Committee: “This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible. Even a full refund would not undo the violation of 1st Amendment rights … Requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues – as opposed to exempting them from making such payments unless they opt in – represents a remarkable boon for unions.” (Emphasis added)

Don’t be deceived by the 7-2 margin on the specific question in Knox v. SEIU Local 1000, which involved such a unique set of facts that many questioned why SEIU allowed the case to reach the Supreme Court. Rove’s agenda was fulfilled in the 5-4 ruling that essentially opens the door to require unions to get “opt-ins” for all political expenditures, a key strategy for reducing union funding for such activities.

That broader issue was not briefed by the parties, nor raised during oral arguments.

Citizens United also involved the Court throwing out decades of legal precedents to reach a decision that went far beyond the dispute before it. And in Dukes v. Wal-Mart, the Court reached far to reject not only the class-action sex discrimination case before it, but to largely kill all large class action suits brought under Title V11; in fact, all consumer class actions were impacted by the ruling. (Justice Scalia participated in the Dukes cases despite his son working for the law firm representing Wal-Mart, a pattern of financial coziness with corporate litigants that he and Judge Thomas frequently engage).

Rove runs the American Crossroads, Crossroads Generation, and Crossroads GPS Super PACs, likely the single biggest beneficiary of the Citizens United ruling. The Supreme Court has given Rove unlimited money to spend while simultaneously cutting into the funding stream from trial attorneys and labor unions that primarily fund Democrats.

Health Ruling Debacle

Many find it too psychologically upsetting to accept that the United States Supreme Court is a branch of the Republican Party. They are already busy explaining why Obama’s reliance on the individual mandate was always legally suspect, ignoring that no neutral judge would find the mandate unconstitutional.

The problem is not that Obama was legally reckless in backing the mandate, or in not using a severability clause to protect the other provisions of the bill in case the mandate was struck down.

Rather, the problem for the Court (and Karl Rove) was Obama’s election as President. Since they believe that this was a grave mistake, the Court would have struck down any health care measure Obama had gotten passed.

I recall in law school in the early 1980’s how upset students would get trying to reconcile contrary Supreme Court rulings. They sought to distinguish the facts of each case so they could believe that both rulings stemmed from the same legal analysis. In one such case a dissenting justice noted that the only thing that had changed from the last time the issue was heard was the composition of the court; a rare acknowledgment that the political views of judges typically decided case rulings.

But Americans are raised to view the Court otherwise, which is why there was not a massive upheaval after Bush v. Gore put the loser of the presidential election in the White House.

Despite Occupy, we remain a nation in denial. This week’s health care ruling will open more eyes, but expect the traditional media to do somersaults blaming Obama and others rather than accurately defining the ruling as out of Karl Rove’s playbook.

Randy Shaw is author of The Activist’s Handbook and Beyond the Fields: Cesar Chavez, the UFW and the Struggle for Justice in the 21st Century.

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