If we are to consider the likely outcomes of the Supreme Court challenge to the Affordable Care Act based solely on the Justices' established interpretations of laws relating to interstate commerce and powers of the federal government, we would find at least six votes in favor of upholding the law. Another two might also be up-for-grabs. If we add to that the pro-mandate opinions handed up by two conservative judges who have worked closely with current Justices in the past, the law's chances should look pretty good to anyone. But they don't, especially after today's relatively vicious assault on the law from the court's conservative justices.
You can bet that a solid majority of American legal experts were left surprised, if not aghast, by today's proceedings. Pundits were not. You see, political observers have for months been hyping fairly unsophisticated views of the court's inner workings that cynically assumed justices would ignore judicial philosophy and precedent in favor of political ideology. It looks like there's a very good chance that they're right. What is much, much worse is that the court seems to have come to see itself as a third house of the legislature, one that is above the law -- and is largely correct in that regard.
No matter how the Supreme Court rules on health reform, one thing is certain: the court is now viewed largely as a suspect partisan institution alarmingly contented with its own impropriety.
You can't blame anyone for taking as a given the court's unprecedented political divide. Never before has the Supreme Court been so split along party lines, with Bush and Obama appointees consistently ruling to reward the party that appointed them. It's the best indicator we really have.
There won't be any cameras in the courtroom, so Americans are unable to analyze the proceedings as they happen. I, for one, wish that there were. Many judges, attorneys and legal scholars, however, disagree, and I concede that sometimes there are very good reasons not to allow cameras in a court room. But fears that the media, "would analyze why Clarence Thomas seldom speaks in hearings, would label Antonin Scalia an extremist every time he spoke, and assess whether Ruth Bader Ginsburg is occasionally dozing off," are not among them. If anything, those are compelling arguments in favor of cameras in the courtroom. If today's proceedings were anything like reports have claimed, this is something Americans really need to see.
It all adds up to a Roberts court dangerously close to becoming a punchline for future generations of legal academics. Most are agreed that Roberts himself is fairly shrewd and has a great deal of potential to shape the court but, for the most part, post-Bush v. Gore appointees have earned their reputations as rank-and-file partisans. As for the older justices, Bush v. Gore itself will forever sully their legacy. Not that their reputations were golden to begin with.
After all, Clarence Thomas has been on the court for two decades. He hasn't asked a question from the bench in six years. That's probably a good strategy for the justice, since the conservative's arrival on the court is actually believed by some to have pushed the court as a whole to the left.
On his off time, Thomas likes to busy himself with activities that would be cause for censure or impeachment on the part of any lower-court judge. From Anita Hill to Federalist Society dinners with his lobbyist wife and lawyers arguing against the health care law before the court this week, Thomas has spent his time on the bench (unwittingly, we assume,) actively recruiting critics. The man is a walking argument against lifetime appointments.
Joining Thomas and the anti-health reform attorneys for dinner was Antonin Scalia. Unlike Thomas, Scalia has managed to turn his failings into an absurd, media-friendly, nonsensically no-nonsense image. He flouts the law, flaunts it and we all attribute it to some bizarre but charming braggadocio routine.
Scalia's son just became one of those regulation-fightin' Wall Street lobbyists you read so much about, by the way. We expect that this doesn't bother Scalia one bit, and that he has an obscene gesture ready for anyone who thinks it should. If the justice ever actually recuses himself in a case involving a law his son's firm helped shape, I'll shave my head and change my legal name to Marie.
Still, this passes for acceptable behavior because the court, as a whole, seems unconcerned about the influence of personal connections or, well, outright bribery. The justices like to see themselves as above things like their own actions. After all, this is the court that shot down campaign finance reform. This is the court that decided your local city council can seize your home if it happens to think a hotel might look better in its place. This is a court that claims it is too busy ignoring a flood of lobbyist cash to imagine what could possibly go wrong when bribery is completely legal.
It is little wonder that the current court is damaging the institution's reputation. Trust and approval of SCOTUS has for decades polled at 60-80 percent, but a high in the late '90s has fallen steadily since the 2000 debacle, taking an even steeper plunge after the 2005 eminent domain ruling. Today, just 46 percent of Americans approve of the job the court is doing. That's a narrow loss for a political operation and a pretty sorry number for the guardians of the U.S. Constitution.
In short, the idea of a Supreme Court that should be respected by all is quickly fading into memory. I, like many others, am tired of pretending that these people are worthy of the job entrusted to them. Shouldn't an institution that demands the highest levels of respect be populated by people who at least command a modicum of it?
So what's to be done? I would never, ever argue against the lifetime appointment of justices. It is the politicization that has ruined this court, after all. But I do think that during that lifetime, the members of the Supreme Court should be held to at least the same ethical standards of a circuit judge, and she be removed if they fail to meet those standards. And if we are going to entrust these people with arguably the most important job in the country, we ought to at least be able to check in and see how they're doing as they do it.
It's time to start doing a little lobbying of our own. It should be fun: we can spend as much as we can get our hands on, buy influence as directly as we can manage, and this court won't mind one bit.
This post has been updated since its original publication.