Supreme Court divide riles political parties [Commentary]

The 5-4 margin of conservative to liberal justices is tenuous, given the age of some of the Republican appointees

"If the Supreme Court will not protect women's access to health care, then Democrats will. ... It's time that five men on the Supreme Court stop deciding what happens to women."

Senate Majority Leader Harry Reid

Such over-the-top rhetoric will be coming your way over the next four months, as Democrats desperately seek to hold on to their majority in the U.S. Senate. But it's worth stepping back from generally ludicrous sound bites regarding a spate of recent Supreme Court decisions that have so vexed the president and Democratic leaders.

I say this because partisans are typically more interested in raising money (and the temperature of their political base) than exploring and explaining the intricacies of high court decisions. Here, it makes sense to divide the recent holdings into two categories.

The first (and larger one) reflects a series of 9-0 decisions (13 in all) regarding instances of constitutional over-reaching. These "shutouts" mean that the reliably liberal wing of the court (Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor) saw the outcome (if not the reasoning) in the same light as their five conservative colleagues (Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Clarence Thomas and Antonin Scalia).

In two of the more high profile cases, the court ruled that the president had exceeded his constitutional powers by making recess appointments when the Senate was not in recess, but rather in pro forma session. And in a win for civil libertarians, the court held that police must first obtain a search warrant prior to searching a seized cell phone.

The second category reflects the deep philosophical divide within the court. These divisions are seen in 5-4 rulings decided along predictable ideological lines:

•In Illinois, eight Medicaid-reimbursed home health aides caring for disabled family members sued because they were required to pay "agency fee" dues to a union (the Service Employees International Union) they did not wish to join. Such fees are the lifeblood of public sector unions. The court ruled that the eight workers were not state employees since they could be fired by the individuals who employed them, and so were not required to pay dues. Chalk one up for freedom of choice in the workplace. In response, the SEIU will no doubt allege a "war" on public sector unions.

•In a highly anticipated Environmental Protection Agency case, the court struck down a regulation wherein the agency had asserted unilateral power to "tailor" (i.e., expand) exact statutory emissions thresholds for a given pollutant set by the Clean Air Act. The majority opinion reminded the Obama administration that Congress still writes laws while the executive branch enforces them. It's called separation of powers — a foundational concept even for frustrated presidents with ink pens. In response, the environmental lobby will no doubt allege a "war" on the environment.

•In yet another defeat for campaign finance reform, the court struck down limits on the total amount of money individual donors can give to political candidates. Note this is the fifth campaign finance reform initiative to be rejected in recent years. Memo to Congress: this court is really serious about protecting free speech. And, yes, good government types alleged a "war" on the poor and under-represented.

•The fourth noteworthy case emanates from our favorite man-made disaster: Obamacare. In this case, the owners of Hobby Lobby craft stores claimed the health law's mandate to provide certain contraception coverage for it's employees violated the owners' religious freedom. Note that the company has and continues to pay for 16 different types of presentative contraception under its insurance coverage. The owners' objection was limited to four methods and devices that can work after conception, including some perceived as abortion-inducing drugs. The court agreed and suggested that the government make the same accommodation for religious practices followed by those within closely held companies as it does for employees of religiously affiliated non-profits. A barrage of "war on women" press releases followed, including the beauty that leads this week's column.

The media will continue to focus on 5-4 rather than 9-0. After all, this one-vote margin will be a front burner issue in the presidential sweepstakes of 2016. As for the president, he has certainly done his part for the left. Both Justices Kagan and Sotomayor are young and unabashedly liberal. They will champion progressive causes for decades.

Conversely, reliably conservative Justices Antonin Scalia (78), Anthony Kennedy (78 on July 23), and Clarence Thomas (66), are not getting any younger. You can bet Republicans will expend plenty of energy reminding their base of this fact in the run-up to 2016.

Whether left or right, the fight over who gets to name the next Supreme Court justice will generate plenty of fire as the presidential election season begins in earnest.

Robert L. Ehrlich Jr.'s column appears Sundays. The former Maryland governor and member of Congress is a partner at the law firm King & Spalding and the author of "Turn this Car Around" and "America: Hope for Change" — books about national politics. His email is ehrlichcolumn@gmail.com.


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