Douglas Cohn: Founders left court insulated from accountability

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WASHINGTON — Most people assumed the debate over contraception was over a long time ago, but the Supreme Court apparently thinks otherwise. In a 5 to 4 decision in the Hobby Lobby case, five male justices, all Republican appointees and all religious Catholics, upheld the family-held corporation’s religious objections to certain types of contraceptives. A strongly worded dissent from Justice Ginsberg said the ruling creates a precedent that allows people to choose whether or not to follow any law.

Ginsberg was one of the three women on the Court along with Justice Breyer who opposed the decision. Democratic Presidents Clinton and Obama appointed the four dissenters; the others were Republican appointees. It’s becoming more and more commonplace to see the stark political divide on the Court despite efforts by Chief Justice Roberts to find areas where all nine justices can agree.

On the big issues of reproductive rights, civil rights, money in politics, and religion in government and politics, there are two radically different worldviews on the Court. The only thing the justices sadly have in common is their isolation and insulation from the real world. That’s not true of every one of them. Justice Sotomayor in particular makes a real effort to stay in touch with the hopes and dreams of people like her who were not born into privilege.

The irony of the Court striking down the 35-foot buffer zone around abortion clinics while maintaining a buffer of its own around the Supreme Court building and grounds is not lost on the average Joe, and that decision was unanimous.

The Founding Fathers got a lot of things right, but their determination to grant Supreme Court Justices lifetime tenure to insulate them from politics is having the opposite effect. Instead, they are insulated from accountability. Granted, it’s taken a couple hundred years for this corrosive effect to become as insidious as it is today, but sooner or later there will be a reckoning.

Decisions this week on religious exclusions for corporations, and a rollback in union protection for public service workers, add to the Court’s relentless march to the right. It’s as though the justices start with where they want the decision to fall ideologically and then work backward to find the reasoning.

Justice Alito, writing for the majority in the Hobby Lobby case, asserted that it only applies to family corporations that are closely held, implying they are just one step above mom-and-pop operations. The billionaire Koch brothers are the brains and the backers of Koch Industries, and there is nothing small about their corporate holdings or their politics.

Lifetime appointments are supposed to separate the justices from political orthodoxy, but the links are too obvious to ignore. The most blatant of course was Bush v. Gore that elected a Republican president by ordering the vote count halted in Florida. Insulation from momentary swings in public opinion is appropriate, but the justices should not be immune to the arc of history and a rapidly changing America.

The heart of the Founding Fathers philosophy was that government can exist only if there is faith in its institutions. Congress is at its lowest recorded rating ever, the tax system is in disarray with rich people overly rewarded and inequality growing, and the Court increasingly is seen as catering to corporate interests at the expense of women and minorities.

President Obama isn’t faring all that well either with his approval rating at 41 percent, and in the dozen states with key Senate races, even lower at 38 percent. He often says the system is rigged, but seems to be seemingly powerless to effect the change he was elected to bring about. Something is going to get people sufficiently angry about our broken politics, and if it’s the Supreme Court and its bone-headed decisions, then maybe some of these rulings will have been worth it.