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.