â€œIf we want to save some money, letâ€™s just get rid of the court,â€ was the reaction of Republican presidential candidate Bobby Jindal, the governor of Louisiana, to Fridayâ€™s majority opinion locating a right to gay marriage within the text of the Constitutionâ€™s 14th Amendment.
Jindalâ€™s comments signify a disgust widely felt on the right at the moment with a Supreme Court that failed either to strike down ObamaCare or to preserve the traditional definition of marriage. If the frustration feels familiar, it shouldâ€"it tracks with the contempt the left felt for the high court after the Bush v. Gore decision in 2000 resolving the disputed presidential election, and after the 2010 Citizens United decision that struck down some of the campaign speech restrictions of the 2002 McCain-Feingold law known as the Bipartisan Campaign Reform Act.
Getting rid of the Supreme Court would require either disregarding the Constitution entirely (not exactly the best campaign position for a candidate for a job whose oath of office includes a pledge to â€œpreserve, protect and defendâ€ the same document) or amending it somehow to deal with Article III, which vests the judicial power of the United States â€œin one Supreme Court.â€
Even if all that political heavy lifting werenâ€™t involved, however, thereâ€™s a strong case to be made that weâ€™re freer with the Court than without it. Consider three cases from this term where the court stepped in to, essentially, protect the property rights of capitalists.
My favorite of the threeâ€"though it is a close callâ€"was todayâ€™s five to four opinion in Michigan v. EPA. There the court struck down a plan by President Obamaâ€™s Environmental Protection Agency to impose air-quality regulations that would have cost coal-fired electric power plants $9.6 billion a year to achieve benefits worth between $4 million and $6 million a year. The petitioners included not only 23 states, but also the National Mining Association and the Utility Air Regulatory Group. It was a member of the Utility Air Regulatory Group, Peabody Energy, that retained Harvard Law Professor Laurence Tribe to argue against President Obamaâ€™s EPA, thus triggering some of the most entertaining pre-decision drama.
The dean emeritus of NYU law school, Richard Revesz, who is a fine fellow, took to the op-ed page of The New York Times to predict that Tribeâ€™s claims â€œseem unlikely to persuade a court.â€ Two other Harvard Law professors, Jody Freeman and Richard Lazarus, publicly attacked their colleague, Professor Tribe, for making arguments for the coal industry that they described as â€œbaselessâ€¦ridiculousâ€¦wholly without merit.â€
The coal industry isnâ€™t exactly popular in polite circles these days. Michael Bloombergâ€™s Bloomberg Philanthropies teamed up with the Sierra Club for a campaign that boasts about how many coal-fired electric power plants it has forced closed. But our Supreme Court stuck to the law and protected the coal-burning companies who had nowhere else to turn.
The second case was decided by an eight to one margin. Here, too, the court ruled that the Obama administration had exceeded its authority under the law. The case, Horne v. Department of Agriculture, involved Fresno, Calif., raisin farmers Marvin and Laura Horne, who were forced to turn over some of their raisin crop to the federal government as part of a program to raise raisin prices by reducing the supply. The governmentâ€™s position had been that if the Hornes didnâ€™t want to give their raisins up to the federales, they were free to grow a different crop. Perhaps endive (Michael Dukakisâ€™s favorite) would do, or kale.
The third case was lower profileâ€"I wouldnâ€™t even have noticed it if not for a press release from the Institute for Justice, a non-profit libertarian law firm. It involves a business owner in Norfolk, Va., who posted a protest banner on the side of his building to resist its seizure by eminent domain. The IJ quotes Bob Wilson, one of the owners of Central Radio, exclaiming, â€œI am ecstatic! My local government violated my constitutional rights, but today, the U.S. Supreme Court restored those rights, and it restored my faith in our nationâ€™s justice system.â€ In this case, Central Radio Company v. City of Norfolk, the Supreme Court did not issue a formal opinion, just vacated a lower courtâ€™s judgment and ordered a review.
The stereotypical Supreme Court petitioner is a discriminated-against minorityâ€"Oliver Brown trying to get his daughter Linda into a Topeka public school, or gay couples seeking to wed. Itâ€™s a sad commentary on our times that business owners and property owners need court protection from government assaults on their rights. They are, in some ways, the embattled minorities of our time. Imperfect as the court is, at its best it is capable of restoring faith.