A Surprise Court Decision

By now everybody with even the most remote interest knows that in the coming hours the U.S. Supreme Court is going to announce its decision on the constitutionality of the Patient Protection and Affordable Care Act (or “Obamacare” to those who’ve been following the debate via bumper stickers and tabloid news). We all know that it is going to be at least partially struck down. And we all know that it will be decided by a five to four decision. How do we all know that? Because the Supreme Court is not as apolitical as it should be, and that makes it pretty predictable in cases this politicized.

I don’t want to argue specific merits of the Affordable Care Act or whether I, as an unqualified legal non-expert, believe it to be constitutional. Like most of the people holding strong opinions, and probably too many members of congress, I haven’t read the entire bill. I honestly cannot say for sure whether every part of the law is or isn’t 100% within the confines of the constitution. I’ve read compelling arguments on both sides of the issue, and lots of ridiculously stupid arguments as well. But rest assured that a lot of what we’ve heard about the bill was bullshit (death panels). And a lot of that bullshit was spread by people that knew they were lying (congress). That’s another story.

What concerns me is how accustomed people seem to have become with the possibility of a politically influenced supreme court. Every time there is any kind of controversial high profile case headed to the court we hear a lot of speculation, calculation, and debate from people that ultimately will (or should) have no affect on the final decision. Whether reporter, pundit, or opinionated co-worker, every angle will be discussed and argued to length and eventually the debate will come down to attempts to predict and justify the court’s future decision. It’s in that speculative stage that I so often hear the terms “liberal justices” and “conservative justices.” I hate those labels, and they’re mentioned so often and nonchalantly that you’d think that the Supreme Court was originally established to be a smaller version of partisan congress, tasked to assemble and debate their personal ideals in order to arbitrate matters that larger bodies of government weren’t able to settle on their own.

To my knowledge, that is not the duty of the court. My understanding is that the Supreme Court’s job is to settle interstate disputes, hear appeals from lower state and federal courts, and determine the constitutionality of passed legislation. Those tasks involve interpretations of law, not expression of political opinion. Of course a person’s personal politics may have some affect on their interpretation of law and precedent, but it should be incredibly minor and actively suppressed by the justices themselves.

In reference to judicial review, we’re not asking the court to decide if a particular statute or law is a good idea or supportive of a particular political leaning. We’re asking them, in their legal expertise, if a law passed in accordance with the legislative process described in the constitution, by the elected representatives of the citizens, and signed by the duly elected president is legally aligned with the constitution of the United States. What does the law say? And is that in violation of constitution? Whether they like the law or not should have absolutely no bearing on it at all. Each justice’s individual personal opinions have already been represented at each of their local ballot boxes when they hopefully contributed to the whopping 50ish percent of citizens who actually vote. Now their job is to read a law, interpret the merits of that law, and adjudicate the law’s constitutionality.

If I’m correct and that is the duty of the Supreme Court, then how can they be so consistently split down the same line on the most controversial cases? I don’t mean the same ratio (5:4). I mean the same division of actual justices. We’ve got the so-called “conservative justices”: Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito, and Anthony Kennedy. And then there’s the alleged “liberal justices”: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagen. In the most recent Supreme Court sessions, this particular 5-4 configuration has appeared in several controversial decisions ranging from state executions of foreign nationals to state’s campaign finance regulation to tax credits for private schools. This was the split that decided Montana’s 100 year old state election finance laws could not limit corporate financial influence because of 2010’s Citizens United decision. This was the split when the high court decided that the police can legally strip search anyone that is arrested “even if there is no reason to suspect that the individual is carrying contraband.” And of course the actual Citizen’s United case was decided by the same split except John Paul Stevens was still serving on the court in the spot where Kagen would later be selected.

Yes, I know that the court has faced criticisms of partisan influence for nearly as long as it’s existed. I also know that the court manages to smoothly adjudicate a large number of cases each session without significant controversy, with different justices agreeing and disagreeing independent of their alleged party members. They even make a number of unanimous decisions in many of the lesser known cases brought before them. The many examples of the justices making unanimous decisions, or apparent non-partisan decisions are what makes the predictable 5-4 split on controversial decisions so suspicious.

Is the legal wording of these laws really so murky that nine highly educated and experienced professionals in the field of law cannot read the same words and come to any level of consensus on what those words mean? Or are they just as dedicated to their party’s ideals and biases as the rest of government, and therefore incapable of setting them aside long enough to do one of the most important and influential jobs in government?

We’ve come to expect, and unfortunately accept, grid locking bitterness between political parties and ideologies. No matter your political leanings, that contentious inaction is stifling to the country. But congressional inaction can theoretically be solves by simply electing different representatives that are capable of adult dialogue and reasoning. Supreme Court decisions can only be reversed by the court itself reversing that decision or by the drastic (and difficult) step of amending the U.S. Constitution. With such a high probability of permanence in their decisions, it is of utmost importance that they base those decisions on legal statute and not party politics.

I’d love a surprise court decision. I’m not necessarily asking for the court to uphold the Health Care law, though that would be a surprise. I just want an unpredictable decision on this bill. I want a decision that would make clear that the justices based their decisions on the legal merits of the law and not the political leanings of their party. I want an 8-1 decision in either direction. Or a 5-4 decision where Kennedy supports the law and Sotomayor doesn’t. At quick glance, they appear the most willing to make decisions independent of their media-assigned groupings. And I want to read the decisions and explanations of those decisions. I want to see logical legal reasoning of precedent and not some hypothetical bullet shot or dodged by the court. I want the terms “liberal justices” and “conservative justices” retired from the lexicon. They’re judges. And any personal bias should be undetectable.

I need the court to do something that will make it clear that they truly appreciate their duty to the country and the heavy weight of their gavels. I’d love to reread this blog on Friday and feel foolish for being so presumptuous an untrusting of the highest court in the land. I’ve been wrong so many times in my life. I’d love to be wrong on this one.

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Who Cares What You Think?


I have recently been involved in a short series of political debates with a friend. The specific subject of the debates or which position(s) we each took during the discussions is not important. What’s important is that my friend’s opinions won’t matter. Not because I don’t share them, but because he’s not going to voice them. He’s a good guy and his opinions are not drastically controversial or dangerous. His opinions are irrelevant because he’s allowing them to be. He’s not planning to vote. When I asked why, he replied “because they’re all fucked up.” Because he thinks both parties are broken, he’s not going to vote at all. What kind of logic is that? I’m not picking on my friend singularly. He’s not at all alone in this sentiment. I have read and/or heard many others say similar things.

“I refuse to participate is a system that is so corrupt.”

“My vote doesn’t matter anyway.”

“The system is rigged.”

“They’ve already picked their winner, so why bother?”

Each statement contains some level of understandable distrust or frustration with government. I definitely get that. But they are all essentially saying the same thing; “No one is listening to me.” And I believe that not voting in response to feeling disenfranchised is exactly the same thing as sitting really still and really quiet as a response to being ignored. It makes absolutely no sense.

Yesterday during Wisconsin’s gubernatorial recall election, an NPR commentator reported that voter turnout could potentially reach more than 100%. It was not an allegation of corruption, but instead a play on words, or maybe statistics. Typical voter turnout percentages are reported as a percentage of the voting-age population that participates in a given election. In this case, the reporter was instead basing his number on the percentage of registered voters participating. And the greater than 100% number was only possible because in Wisconsin, an unregistered voter is able to walk up to the polls, register to vote, and immediately cast a vote. And apparently that was happening A LOT, in effect increasing the voter participation above the previously understood number of registered voters. In these terms, I believe that Madison’s voter turnout ended up being something like 119%.

That idea of getting such high voter participation is the only positive thing I can find in the recall story, since as I expected, it was unsuccessful. But it is hard to dispute anything that is actually a result of the full voice of the voters.

[Note: It’s hard to dispute such results, but not impossible. I just don’t want to get into the inexplicably legal use of misinformation in campaign ads. Maybe another day.]

People’s disregard for their own right to vote is upsetting because I feel like that malaise is desired, expected, and taken advantage of by different political movements that have no desire to represent all of the people or to do what is good for society as a whole.

Any politician in this country that wants to call him or herself a “leader” or especially a “patriot” should want the highest voter participation possible, but that is too often not the case. Winning a seat in office seems to be far more important than being a true representative of the people. And voter suppression is a very popular strategy for winning.

In 2006, four members of John Kerry’s 2004 campaign were convicted of slashing the tires of vans rented by the Wisconsin Republican Party that were going to be used by Republican election monitors. In 2008, the Republican Party unsuccessfully tried to have 60,000 voters in the traditionally Democratic city of Milwaukee, Wisconsin removed from the rolls. In Maryland’s 2010 gubernatorial election, the republican candidate Bob Ehrlich’s campaign launched over 100,000 robocalls to predominantly black Democratic districts telling them that the Democratic candidate had already won and that there was no need to vote, even though the polls were not yet closed and no winner had been decided (Source). Why would anyone pretending to care about their state or country want to suppress anyone’s voice in that area?

The nation’s voter participation is already low enough. If voter turnout in an election is only 50%, and the race is tight, then it is conceivable that only 26% of the people are going to be making decisions for 100% of the people. Why would anyone be satisfied with that? Especially so-called leaders? The 2008 Presidential election had the highest voter turnout since the late 1960’s with a whopping 61% of registered voters casting a vote. That’s higher than normal and much higher than the average 40% turnout during non-presidential election years. But where are the other 40% to 60% of the people? I hope they’re not the one’s complaining in all of those chat and comment sections of online news articles. I hope it’s not the people with the cars covered in hateful bumper stickers. If you’re not voting, stop griping.

Some political scientists have suggested that low voter turnout can imply either disenchantment or contentment within the electorate. While I see how both are possible, I don’t think it is too much of a stretch in recent times to doubt the likelihood of the latter in major elections. People say that as a country we have always experienced a certain level of political divisiveness, but it’s hard to deny the widening split happening right now. Some polls alleged that during the Wisconsin recall election cycle as many as one in three people in the state claimed to have stopped talking to a friend or family member due to political differences. When the political discourse degrades to the point where families can’t even endure the tension, what are the chances of our country of strangers pulling together for any kind of common good?

While overall contentment seems unlikely, the people’s contentment with an expected outcome, or at least acceptance of one, can lead to a lower voter turnout. And that can be a very useful tool as well. The state of North Carolina recently included an amendment to its state constitution on the primary ballot. Surely if the state legislature really wanted the people’s opinion on that amendment, they would’ve put it on the general election ballot in November. It is a Presidential election year after all, which reliably brings a higher turnout. But because the amendment concerned the controversial issue of gay marriage, it was safer to put it on the May primary ballot instead. Presidential nominees are often already decided prior to May (as it was this year), there was no national Democratic primary to draw that constituency to the polls, and primary election participation in general is reliably lower. So that’s where they put the initiative. The predictable and reliable complacency in that situation was a very useful tool. Low turnout allowed a very small percentage of the state’s electorate to change the constitution.

No matter what political party you align with, or if you do at all, there is no noble reason to want less election participation. The higher the turnout, the more accurate the measure of the people’s will. The more fractured our voices become, and the more secluded we make ourselves from each other, the less likely that we will ever truly progress as a nation. Nationwide consensus is an unrealistic goal, but for a democratic republic to work, shouldn’t we really want to hear its full voice? Do we really want small factions to buy a greater voice, or to actively try to silence another demographic’s viewpoint? Is that really what is going to make us great? I don’t see how.

I’m not sure of all the reasons for such consistently low turnout. It could be complacence in some, disenchantment in others, and maybe simple indifference. But it may just be hardship for many as well. Our national elections are predominantly held on Tuesday, which is a work day for most people. Sure the polls are open for roughly twelve hours, but for people with a family and a job, it isn’t hard to fill that twelve hour window with other obligations. For many of the lesser privileged among us, the idea of taking a day off work in order to go stand in line and vote isn’t realistic at all. The lines themselves are a deterrent. Having some lines may not be avoidable, but there has to be a way to keep them short and/or fast moving. Many people simply cannot afford to spend hours at the polls. These circumstances all contribute to lower voter turnout, and often that lower turnout is more prevalent in the lower socioeconomic class. That alone is a large group of people whose voice is statistically under-represented. Is that voice less valuable? I don’t think so. I want everyone’s voice heard. Even the one’s I don’t agree with at all.

Unfortunately, I cannot claim to know the solutions to low voter participation any more than I could claim to know the causes. I’ve heard some suggest that Election Day should be on weekends, or that it should be a national holiday in order to allow higher participation. Others have suggested an embrace of technology that would allow online voting, and greatly reduce the schedule conflicts that discourages participation. Mexico, Australia, and most South American countries have compulsory voting systems in which failing to participate in elections can be met with punitive measures ranging from monetary fines to jail-time. I don’t think that is the answer, but who knows? I’ve been wrong so many times before.

I’ve wondered if peoples’ understandable love of their weekends would discourage voter participation in that situation. How many people want to spend any part of their short and very valuable weekend standing in line at the polls? Likewise, I’m not sure if a holiday wouldn’t be viewed as an equally valuable slice of “free time.” Online voting seems a very good idea, but with such varying access to computers and equally varying capabilities, it probably isn’t as immediately possible as some would like. And those access and capability issues are likely to continue to disenfranchise the same lower economic classes as the current system.

In short, I’m doubtful that any institutional change is the magic answer. People’s attitudes may be more to blame. People are easily discouraged by the appearance of misrepresentation. People are understandably disgusted by the vitriolic nature of campaigning. People are lazy. Some people just don’t understand how government works and think that the President is responsible for everything. That has to be some part of why so few people participate in congressional and state elections. It’s easy to blame the president for everything, and if you believe that, you’ve only got to vote once every four years. And of course the television ads are all of the research needed to make that decision.

Maybe it’s easier than I thought to see why someone wouldn’t want to bother voting. But it is the most valuable role that we all have in our government. There is more we can do; from activism, to direct campaigning, to financial contributions, to simple sharing of information. But voting is essential. Voting is not an automatic endorsement of the two-party system or of the candidates that are presented. I know people who have voted third party candidates in at least the last 4 elections. They didn’t do it because they thought that candidate could win. They did it because it is their voice and they wanted it documented. They did it because they are American citizens who value their voting right enough to actually use it. Each of those voters is more of an American Patriot than two rich brothers buying influence in the election of a state they don’t live in.

Why should anyone care about your political opinion if you don’t care enough about it to record it on a ballot?