Right-thinking justices upset liberals
US President Barack Obama and Judge Sonia Sotomayor. Photo: Getty Images
They are the nine men and women who have broken the heart of America's left, a Supreme Court bench more conservative than any other in modern history.
Once it was conservatives who alleged the courts were guilty of activism - of making law from the bench by striking down those created by Congress. Now it is the cry of liberals, who see the social architecture created by progressive governments over generations under threat.
Since 2000, the court has cleared the way for a Republican president to take office, scrapped campaign finance regulations and wound back affirmative action laws.
In hearings into the Obama administration's healthcare reforms last month, the court appeared downright antagonistic towards the government's counsel. On Wednesday, even the moderate minority of the nine-member court appeared to be sceptical of the federal government's attempt to repeal controversial anti-immigration laws introduced by Arizona.
According to one lawyer who appears often before the court, not only is the right wing of the bench more determinedly conservative, so are those appointed by Democratic presidents.
By this analysis the court has but one wing, if not one eye.
Tom Goldstein was second chair in the case that most shocked liberal Americans, Bush v Gore, which ended the recount of the contested ballot in Florida and installed George Bush as president. The decision was split five to four along party lines.
The unsigned opinion held that the decision would be ''limited to the present circumstances''. Having installed the president the court in effect abandoned its decision.
''For liberals in America it was the decision that caused them to have doubt the court's conservative majority was on an ideological campaign,'' says Mr Goldstein, who was second chair for Mr Gore.
''The overwhelming majority of those who think and write about American constitutional law think that it was incorrect.''
But Mr Goldstein's criticism of the court is more nuanced than that of most of the left. He believes the court is ideologically conservative, but not partisan. ''I don't think it was part of an effort by the court's conservative majority to install a Republican president.''
A series of studies appeared to show the court has veered further to the right and become more activist since. Among the most notable was the Martin-Quinn Scores analysis, named for the academics who invented it, which counted cases in which conservative justices had struck down laws up until 2010 and found the court was at its most conservative since the 1950s.
In 2010, also by a five-four conservative-liberal split, the court made another controversial decision, its ruling in a case known as Citizens United.
A non-profit group with conservative links, Citizens United, wanted to pay to air a documentary critical of Hillary Clinton, breaking laws on paid electioneering within 60 days of an election. The court struck down the bipartisan electioneering law, citing the first amendment right to freedom of speech.
In effect, that court had granted corporations similar rights to those enjoyed by individuals, and equated spending money on advertising with freedom of speech.
And since corporations are not subject to the campaign donation restrictions that bind politicians and parties, the amount they could raise, and raise from anonymous sources, has become limitless. Mr Goldstein fought on the losing side of that case, too.
''Liberals will say [granting freedom of speech to companies] is absolutely bizarre, conservatives will say it is perfectly normal; there is no right or wrong answer to that question,'' he says today.
''But there is no question that it has an impact on the functioning of democracy, and you could argue it either way. You could say more speech, more ads, more ideas expressed is good, or you could say it's incredibly distortive, that it allows people or companies with huge amounts of money to effectively buy elections.
''Purchasing an ad is speech. What CU did was remove a significant restriction on the major aggregations of money.''
This is what concerns the left. Clearly big business has the cash and the incentive to back conservative governments seeking to cut taxes and slash regulation.
The so-called Super PACs that are dominating this campaign are the direct result of Citizens United. Once the court established corporations could air political advertisements during election campaigns, Political Action Committees were formed in support of candidates.
According to election regulations the PACs (which become Super PACs when they combine) must remain independent of candidates, but that independence is tenuous.
Candidates appear at fund-raisers hosted by Super PACs and staff flitter between the campaigns and the PACs.
As a direct result, the Republican primary race that just finished was longer and bloodier than previous contests because of the sea of cash spent on advertising. The general election will be a bloodbath.
The other effect of Citizens United is to constantly remind the public of the influence of the court, because political ads are now omnipresent.
''Public frustration with campaign spending is likely to peak in the fall with the torrent of ads and the inability to tell who is behind them,'' Mr Goldstein says.
But it is the pending decisions on the Affordable Care Act that could signal even greater changes to US society, says Doug Kendall, the director of the Constitutional Accountability Centre.
The states challenged what became known as Obamacare, arguing the federal government had no constitutional right to rule on commerce between the states or force individuals to buy a product they might not want - health insurance.
Should the court make a sweeping ruling against the government, Mr Kendall says, the ''hallmarks of the 20th century'' including the social security system, would be under threat. ''We would be in a dramatic new age where the Supreme Court has decided that the federal government can no longer act to solve national problems.''
Neither Mr Kendall nor Mr Goldstein care to predict the outcome, but Mr Goldstein says the tenor of comments from the bench in the Arizona case this week are instructive.
In this case the federal government was seeking to overturn an Arizona law directing its police officers to stop and check people who might be illegal immigrants. The federal government argued immigration was its turf. The court did not seem to buy it.
''The state has no power to close its borders to people who have no right to be there?'' asked Justice Antonin Scalia.
Adding later: ''Are you objecting to harassing the people who have no business being here? Surely you're not concerned about harassing them.''
The Washington Post columnist Dana Milbank noted Justice Scalia's line of attack was nearly identical to that of the Tea Party protesters chanting on the court's stairs throughout the hearing.
What shocked Mr Goldstein was not the aggression - he is used to that - but the tepid response of the Democrat Supreme Court appointees. ''It showed that the notion that there is a true left of the Supreme Court, a liberal wing, is wrong,'' he says.
''It is not just that the right side of the court has moved further to the right, the entire court has moved to the right.
''The conservative justices are far more conservative than the liberals are liberal.''
Mr Goldstein is not sure that today's court is any more conservative than the court of the 1970s was liberal. Back then the court under chief justice Warren discovered a right to privacy lurking in the ''penumbra'' of a handful of amendments of the bill of rights, and created legal abortion in the US in Roe v Wade.
This activism outraged and energised the right - both Christian conservatives and small government libertarians.
It is unclear what the impact of the culture war on the bench will be; just that Americans will live with it for a long time.
''When the constitution was written and provided for lifetime appointments, no one thought that meant until you were 90,'' Mr Goldstein says.
''No one lived until they were 90. A Supreme Court appointment can be the most lasting legacy of a presidency.''