Last year’s session of the SCOTUS had Chief Justice John Roberts’ fingerprints all over it: carefully constructed and very narrow decisions designed to maximize the number of justices supporting the ruling. As a result, the court had a large number of unanimous or near-unanimous rulings. While the partisan battles raged on Capitol Hill and Pennsylvania Avenue, the SCOTUS was the sole bastion of collegiality left in Washington. And to be honest, last year’s session is something to be proud of: Chief Justice Roberts’ pragmatic judicial philosophy won out over the hard-core ideologues (like Scalia). Unfortunately, the “Collegial Court” of ’06 has been replaced by the “Partisan Court” of ’07. The Chief Justice who prides himself on judicial minimalism has now found himself unable to reconcile the warring camps of Red (Alito/Scalia/Thomas) versus Blue (Ginsberg/Stevens/Breyer), leaving himself, Anthony Kennedy and David Souter to split up into what is invariably a 5-4 decision if the case is at least contentious.

The 5-4 ruling on the Federal Partial Birth Abortion Ban was the beginning of the end for the Roberts Court. As noted in the annals of the 12 Angry Men Blog, Roberts managed to pull together a narrow majority which rested on Justice Kennedy practically begging for another plaintiff to sue to invalidate the law. Justice Ginsberg’s dissent was loud, angry and shrill, full of the partisan rancor which had finally bled into the last branch of government.

From abortion, the “third rail” of American partisanship, the Partisan Court moved to racial discrimination with a 5-4 opinion (exact same lineup, go figure) ruling that school districts in Seattle and Louisville are illegally discriminating based on race. Here the plans which largely rely on race as a tiebreaker to try to insure a diverse student body at each school are struck down by the Partisan Court. Justice Roberts was caught uttering the vacuous tautology, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” which the majority appeared to take as a condemnation of the school policies. The left-leaning justices were (as one might be expect) quite displeased. Justice Breyer, in his minority opinion, notes that the ruling will “substitute for present calm a disruptive round of race-related litigation.” No doubt Justice Breyer isn’t looking forward to the new wave of racial litigation which will inevitably arrive on the docket of the SCOTUS courtesy of Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1. Justice Stevens is even more pointed, noting that, “It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today’s decision.”

Next up we have another 5-4 ruling (same cast… is this a surprise to anyone at this point?) in Leegin Creative Leather Products v. PSK Inc. Here the majority of the Partisan Court decided to pitch a 96-year-old ban on retail price maintenance agreements under the Sherman Antitrust Act. The law basically set that any agreement between the manufacturer and the retailer to fix a minimum resale price was a prima facie violation of Sherman. Seeing as these agreements were often use by producers to hamstring un-cooperative retailers (by only selling to those willing to adhere to the manufacturer’s price), the SCOTUS ruled that such agreements were unconstitutional. But the Partisan Court, prodded by the Bush Junta and Milton Friedman’s economic love children decided that what was bad for producers was bad for America (nevermind the consumers and retailers who are getting the shaft) and pitched 96 years of settled law. So much for judicial minimalism, Justice Roberts.

In the field of capital punishment the Partisan Court issued another 5-4 (Kennedy switching sides, but otherwise the same teams), blocking the execution of Scott Louis Panetti by the state of Texas (I mean, where else would this happen?). Despite being (a) bat-shit insane, (b) convinced that he was healed by the hand of the Almighty, (c) off his meds and (d) representing himself in court (having fired his lawyers), the jury of the “kill ’em all and let God sort ’em out” convicted him in 90 minutes and sentenced him to death. I mean, I can’t even get my insurance company to give me the time of day in 90 minutes, but in Texas, that’s enough time to legally decide to kill a man who’s a complete kook. Justice Thomas, dissenting, called the ruling “a half-baked holding that leaves the details of the insanity standard for the district court to work out.” Justice Thomas, of course, failed to note that the SCOTUS never bothered to work out that standard either (beyond some vague outline in Ford v. Wainwright). I believe that the NYT summarizes Mr. Panetti the best with the quote, “A schizophrenic who served as his own lawyer in court and mounted an often incoherent defense, Mr. Panetti claimed that his body had been taken over by an alter ego he called Sarge Ironhorse and that demons were bent on killing him for his Christian beliefs.”

I could go on about union cards or pay discrimination, also brutal Red vs. Blue fights, but I’ve made my point. The SCOTUS has become the Partisan Court. And now that it’s partisan, it’s time to follow in the footsteps of Adams, Jefferson, Jackson, Lincoln, Grant and Roosevelt and stack the court. After all, if the SCOTUS is now just a political toy, it’s time again to treat it as such.

Simply put, Chief Justice Roberts has failed. And it’s America that loses out.

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