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.

6 responses to “A Surprise Court Decision

  1. So what exactly does a decision look like that makes it clear that justices have based their decisions on legal merits and not political leanings? You mentioned 8-1, 9-0…I’m not sure you could ever define that in a way that everyone agrees on and so what it sounds like you want is the Supreme Court to reach a decision that satisfies the personal and political leanings of 300 million people expressed through the vote on one law. Impossible. If there is one institution in government (my opinion) that most meets the obligations spelled out in the Constitution, it’s the Supreme Court. Some of their decisions anger me, some make me happy, but most of the time I look at their decisions and it’s clear that it’s a thoughtful decision that has been arrived at based on their interpretation of the Constitution. It’s also very clear that the Court’s interpretation has changed over the years as the country has become more progressive, which is a good thing.

    I don’t think either of us are going to be satisfied with the decision today, but for different reasons, but I won’t be on the side fretting about the political leanings of the court because I don’t think Republican or Democratic parties have any say one way or the other on how they interpret the law. I do, however, believe it’s impossible to separate your legal interpretations of what the Constitution says (or means to say based on the modern view of the world) from your fundamental political beliefs about the country. Let’s face it, though, you don’t get picked by a Republican or Democratic President unless you are in one of the 2 major parties. Why are we not debating the merits of a Nazi, a White Supremacist, or a Libertarian viewpoint on the court if we want “fair and balanced”? I think those views, though, are separate and distinct from a “party”. Do you believe in States Rights as set forth originally or do you think the central government has to play a stronger role? What the heck does genetic engineering and the privatization of seeds have to do with the Constitution? Both of these ideas and obviously man more have been effected by decisions made by the Supreme Court (or will be some day) and in order to get to a decision it sometimes has to be about more than what is written down on the paper.

    I don’t remember my parents ever discussing the Supreme Court in terms of “conservatives” or “liberals” until Clarence Thomas. I’m sure it happened before, but I just don’t remember it. I think those terms came not from the people but from CNN and the other media outlets that have to fill time. Take away their incessant need to fill a 24-hour news cycle and your description of the Court is probably different. I’m willing to conceded I may be wrong there, but I just don’t remember it being an issue until news became entertainment.

    The answer to the question on legal wording and it’s interpretation by nine educated justices is in the history of the Supreme Court. Yes, for the most part the laws ARE that murky when viewed through the prism of the Constitution and legal precedent (case law/dog law, whatever you want to call it).

    I’m OK with whatever decision they arrive at, because I believe it’s 9 good and qualified individuals doing the best job they can (not always an easy task). Look, and I didn’t even try to debate the law itself? Well written, thanks for posting, glad it was on such an important subject.

    • I knew this post had a very short “relevance” life span, and that’s why I wanted to respond to you before the opinion was released (oh well. busy day). I don’t know what a decision clearly based on legal merits would’ve looked like. Without being way more knowledgeable about the details of the bill and the legal precedent, it would’ve been hard for me to describe that for this bill. I just knew that I didn’t want that same 5-4. It can’t be good when every time a politicized issue goes to the court, that everybody from your lawyer to your ice cream man can confidently predict the decision. And I think that a lot of the reaction today was more at the surprise of the decision than anything else. It’s like everybody had practiced their response and had it down to a really great performance and then all of a sudden the script blew away and they had to wing it.

      People are already saying that Roberts clearly doesn’t respect the rights of the people or the states. They’re outraged that HE doesn’t respect the Constitution, but made no comment about the other four justices that supported the law. They seem to have already accepted that those other four didn’t care about the law. That’s bothersome to me. They honestly have no legal faith in half of the court? And it goes the other way too for sure. “Every judge that doesn’t support my view clearly doesn’t understand the constitution or freedom.”

      It’s hard for me to totally say that the parties have no influence on how the justices interpret law. I know they shouldn’t, but with judges being more visible at political functions and at least one married to a paid political activist it’s hard. I hope you’re right.

      I also don’t think it’s totally impossible to separate your personal ideals from your duty of interpreting the law. I have not read today’s opinion yet, but I’ve heard that Roberts mentioned in the statement that he wasn’t deciding if the law is good policy, but rather if it stands up to the confines of the constitution. I don’t know if he actually said that or if he actually did that. But I think that is what they should all be doing. I know it’s a bit idealistic, but it’s not fantastical.

      Great point on the seed issues . My post was definitely focused on the legislative review facet of their obligations more than the judicial review duties. Although they are often applying the wording of the constitution in many of those cases, like the man’s lack of the constitutional right not to be stripped searched over an unpaid parking ticket. But there is definitely going to be more variance in settling some of those cases.

      I couldn’t find it, but I thought that you had made a comment once referring to how you have to put personal feelings aside while conducting captain’s mast because you know that the weight of your decision is going to significantly affect another person and you wanted your decision to be fair and judicious. I may be messing that summation up, but I think that S.C. justices should be able to put politics aside and really adjudicate on the meat of a debate. I feel like we need them to do that.

      I also agree with you that the Supreme Court does the best job of meeting its constitutional obligations. That’s something that I may not have said with much confidence before writing the blog. In writing it, I looked at a lot of past court sessions, decisions, and opinions and it was very enlightening. They are in no way an activist court. Doesn’t mean that they have never made a political decision, but the overwhelming record looks way better than I think people would think. I had no idea how many cases they even hear in a session, or how many times they vote unanimously or with very little variance. That was very reassuring to realize.

      But like how a person who has built a solid reputation for honesty can more easily slip a lie through when he/she feels they need to. That strong record could set the stage for slight political leanings when they feel the need. And in both cases, you hope that your trust is not misplaced or being taken advantage of.

      You are absolutely right about the affects of 24 hour “news” channels. I don’t think that they are valuable at all, and maybe even more detrimental than anything else. I hate the words “liberal” and “conservative” more every day. They’re media labels, and they’re almost always divisive ones. But they’re almost inescapable now, and sometimes I can’t figure out exactly what they mean.

      I think what I was trying to say though is that I really didn’t want that same 5-4. I think I would’ve been satisfied with anything else. And right now, I am satisfied. I haven’t read it yet, but having that same predictable opinion split would’ve made it hard to say that politics had no influence at all.

      We’ll see what happens. I predict a very contentious election cycle and a high potential for Republican dominance at all levels. Congress passed the health care bill, and the republican base rose up and swarmed the 2010 elections. Today the court essentially passed it again, and the reaction could be very similar. I think it would be a huge mistake for Democrats to think that this is any significant political win for them. If they don’t get very vigilant and organized, they could find themselves in big trouble thanks to Mr. Roberts.

  2. I think a discussion about the reliability and honor of the high court of the land is just as valid today as it was yesterday, regardless of whether the court is actually in session or not. In my mind I keep replaying The Dude, Walter, and Donny where Dude and Walter are the Supreme Court and Donny is the media and the general population…just not paying attention to what the conversation really is most of the time, asking poorly timed questions, and in general just having no idea what is going on. Because most of us, including the ones that are supposed to be informing us, don’t really understand just how the court works most of the time and REALLY don’t understand how difficult crafting and interpreting the law is then the result is that we are often frustrated and confused by what the Court actually does. When that happens it gets interpreted however it’s interpreted. Maybe knowledge of our government system is at an all time low, maybe it’s the news cycle, or maybe it’s something else but public sentiment will probably always be tied to the big decision of the day. I’d love to see Supreme Court Approval numbers after Roe v. Wade…I’d be willing to bet that they are lower than today. Public opinion ebbs and flows but the nice thing about being appointed for life is that you don’t care about the polls.

    Historically the Justice that is tagged with the deciding vote is the one that flips to the State, Federal, or individual side when normally they are on the other side of the issue…but it’s also usually described as the person writing the majority opinion. Chief Justice Marshall is always described as the Justice that established Judicial Review in Marbury v. Madison, but there were a lot of other judges who voted…but Marshall wrote the Majority opinion. I think it’s historical precedence that fits in nicely to today’s rhetoric of the left versus the right.

    Your comment on Captain’s Mast is a good summary and captures exactly what I meant. Now, in truth, I felt it was very difficult to not let some personal feelings creep in. Those mostly had to do with the impact to the families who didn’t commit the offense, but would be negatively impacted by my decision to impose a penalty. AND, going back to the original subject of your post, I know that the crew was not happy with most of my decisions. Some thought I was too hard, some too soft, others thought I favored married individuals over single ones…you name it, even in a small crew I was offending some of the demographics. They saw my decisions through their own lens and I couldn’t control that.

    Love your comment about conservatives and liberals. Those terms have changed a lot over the last 200+ years and I’m starting to think they are mostly irrelevant. As I described it yesterday to a friend, I believe in the idea of Life, Liberty, and the PURSUIT of happiness where government is involved in my life in only the ways it has to be (roads, defense, the public good) and when it does involve itself in my life it should be to the minimum with an incentive for me to get them back OUT of my life. Not everyone is going to be rich and not everyone should be. I should not have to pay for somebody else s avoidable mistakes and a government should have to validate where, how, and when it spends every dollar it takes away from the individual. What party do I belong to? Who is representing me? Sometimes I hear Libertarian ringing in my ear but almost everything they say sounds crazy most of the time to me. I’ve traditionally been a Republican, but I don’t like most of what is in their platform. Democrat? Haha, forget it. I want to call myself a Washingtonian because I loved the wisdom and foresight of our founding fathers, but they’re all dead and not a very reliable voting block.

    • You’re absolutely right that the discussion of court reliability is still valid and important(loved the lebowski metaphor, even though Donny didn’t fare so well in the end, so…I hope the people don’t stay in that role). But I think that the unexpected decision is the health care case takes some steam out of the “activist court” argument. I’m still made uneasy with everyone’s response to Robert’s swing. I commented that people seem to have accepted the possibility of political bias in the court, when now it would seem that many instead expected a political leaning. He’s being called a traitor by some “conservative” voices, as if people on the right are saying, “we didn’t confirm him to the court so he could go up there and not support the party line.” Some of the left are suggesting theories that he only swung that way to rile the republican base and guaranty victory across congress and the presidency in November. Those attitudes are dangerous to me. I can’t imagine how difficult the next justice confirmation hearings will be.

      In reference to the Captain’s Mast vs. the Court comparison, you admit that it was difficult to put aside personal feelings, but you made the effort and I suspect that you succeeded more often than not. I respect that in you and expect that in the justices. I do not think that discipline will necessarily affect how all people or all crew members emotionally react to a decision. But if that judicious attitude is consistently demonstrated, I think it strengthens the image of the judge/captain in the eyes of all those that can put aside emotion and look at what is being said. Consensus of opinion is unrealistic, but an overwhelming respect for the institution is possible. There will always be some group of citizens or sailors that just can’t accept that their own personal views are not the rule of the country/navy, but if the institutions are true to the intent of their duties, then those opinions should be a small demographic of outliers.

      I’m going to defer much comment on my opinions of the role of government. I’m sure I will eventually write a blog that more closely approaches that topic. I believe that everybody believes in life, liberty, and the pursuit of happiness, and the caveat in your three item list is just what services fit into the “public good” provisions. And as far as political party affiliation, I view them similarly to how I view the terms “liberal” and “conservative,” just labels that make division simpler without listening. I don’t mind someone calling a particular opinion of mine “liberal,” but I do mind someone labeling ME as a liberal. One is an opinionated adjective of a particular belief. The other is an assumptive summation of me as a whole, and I don’t believe I or most other people can be so conveniently categorized. It’s insulting only in its simplicity. I’ve been registered as “unaffiliated” since I was 18 years old, and I registered that way for a reason. Both parties are similar in their dedication to party over country. And libertarians are damn near a religion more than a political party in that you have to believe the unbelievable to support it, and once you’ve adopted the faith, all other parties are synonymous in that they are all wrong the same way. They’re not libertarians. No thank you. I try to skip the labels the best I can.

      Thanks as always for the input. We’ll definitely chat again. (Maybe we can get our own show on one of those really great cable news channels. Hahahaha.)

      • I vote for a blog on the role of government!!!! Would probably be a multi-parter and we’d be at it for day’s. Yeah, Donny didn’t fair so well, but my suspicion was always that Donny was a good, silent, honorable man. He was my favorite of the three.

        I’m not that concerned by the rhetoric and fully expected a Benedict Arnold comparison, but chief Justice Roberts and the other 4 did what they thought was correct based on the Constitution. The madness of the crowd will inevitably ensue…which is exactly why the Supreme Court exists, opinions after the fact don’t change the fact that it’s Constitutional as a tax. Now it’s up to the Administration to explain how we got to a tax after a promise of no tax.

        I compare the expectation of party affiliation in the decision to statistical correlation. The judges have crossed political lines enough times that I do not believe political parties are positively correlated to every decision. It happens enough that it can be discussed, but it also goes in the opposite direction enough times that you can’t assume it. I think the majority is usually surprised when a legal opinion from the high court doesn’t reflect the mood of the nation and I think polls clearly showed that the nation didn’t believe this was Constitutional. They were, of course, wrong.

  3. Well, in many ways we received just what you asked for. In an effort to preserve the legacy of his court, John Roberts crossed the isle and wrote the majority 5-4 decision upholding most of the key components of the Patient Protection and Affordable Care Act. I must admit my surprise and reluctant pride that, on some levels, the system still functions as designed. The frightening part to me is how quickly the far right turned their vitriol on Chief Justice Roberts, and how strong their expectation for a partisan decision truly was.

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