The statement at issue:"A split court striking down the [Affordable Care] Act will be declaring itself virtually unfettered by law. And if that happens along party lines, with five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics."-Editorial in the New York Times, "The Roberts Court Defines Itself," April 1.
We checked the Constitution, and...James Madison's concept of the separation of powers of the national government has always been thought to be a stroke of genius because it guaranteed a good deal of independence of the three major branches so that they could check each other, to prevent tyranny. In that arrangement, the judiciary has come to be the arbiter of final constitutional meaning (unless there is a formal amendment), and that has worked well, by and large.
In today's polarized political environment, however, commentators (including even newspaper editorial writers) can get caught up in the partisanship, and assume that government action not to their liking is necessarily driven by political bias. Under that view, Supreme Court Justices simply cast votes in ways they think the president who appointed them and that president's party would have wanted; they supposedly can't help themselves but to do that.
That borders on the silly and, at a minimum, shows a lapse of historical memory.
Recall that the Supreme Court in 1952 found that President Harry Truman had abused his constitutional power when he seized America's steel mills, but it could hardly be said that that was driven by political hostility to a Democratic president. The most influential opinion issued with that decision -- one that still acts as a strong check on Executive Branch excess -- was written by Justice Robert H. Jackson, who got his seat on the Court through a Democrat, President Franklin Roosevelt.
President Dwight Eisenhower learned to his dismay that Justice William J. Brennan, Jr., had a mind of his own. And so did Chief Justice Earl Warren, another Eisenhower appointee. President John F. Kennedy surely would not have been all that pleased with the way Justice Byron R. White turned out. President Richard M. Nixon was sorely disappointed in Justice Harry A. Blackmun.
If the Court under Chief Justice John G. Roberts, Jr., were to strike down the new health care law, or at least a major part of it, perhaps those upset by the decision will feel vindicated because, they no doubt will say, he and the others joining him had voted their politics. If the majority is made up of the same five Justices who joined in the campaign finance ruling on Citizens United v. Federal Election Commission, those critics will feel further confirmed in their assumptions.
But how does one explain that two federal judges, named to their courts by Republican presidents, had voted to uphold the key feature of the new law-the individual insurance mandate? Were Circuit Judges Laurence H. Silberman and Jeffrey S. Sutton "driven by politics"? And why did two other circuit judges, one named by a Democrat, the other by a Republican, both write opinions declaring that the courts should not rule at all on the new law's mandate until after it actually went into effect in 2014?
It is neither naïve nor sycophantic for a detached student of the Court to point out that many of the biggest issues the Court must face are far from easy, and far from guided mechanically by past precedent. If one is sure that the Court's choice about the health care law is "fettered" by the law laid down by prior precedent, one simply cannot have read those precedents. The Court is, in a very real sense, starting over with the main parts of this case. If the outcome were a slam-dunk, it would have been settled the moment the hearings were over (and maybe even before, by a summary ruling without a hearing), but it wasn't, and it won't be, for weeks and perhaps a few months.
Being a Supreme Court Justice involves the exercise of judgment, and the process that the institution follows tends to neutralize political or partisan influence over that judgment. Justices do bring their own life experiences, and a good deal of their internal value systems, with them, but unless one is to assume entirely bad faith, there has to be a measure of belief that they will not be fettered by those private preferences.
The end result of this process requires each Justice who writes an opinion to defend the position he or she has taken, along with colleagues lined up on the same side, and the product can be judged on its merits. Where there is deep disagreement, the Court will have its own internal critics in the dissenting Justices, and, most of the time, the majority will seek to answer-on the merits.
Whatever one thinks about this process, it is not one that "sidestep[s] the Constitution." It is what the Court has been doing since 1803.
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.
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