Has the US Supreme Court become too political?
July 18, 2012

In June, the Supreme Court upheld President Obama's healthcare reforms in a ruling that surprised conservatives and liberals

In June, in the days before the United States Supreme Court was to issue its landmark ruling on the constitutionality of President Barack Obama’s healthcare reform, the nation went insane with half-baked speculation. Everyone was certain that the sharply polarised court, under the stewardship of Chief Justice John Roberts, would deliver a sharply polarised verdict. There was much hand-wringing and gnashing of teeth, as the prospect of a politically motivated decision from the court highlighted the evaporating line between law and ideology.

In theory, the job of the Supreme Court, whose nine lifetime-appointee justices are supposed to be impartial, is to ensure that the President and Congress act within the limits outlined in the US Constitution. On right and left Americans now worried publicly about the wisdom of turning over vital matters of public policy—including the sprawling healthcare legislation which was the fruit of the greatest battle of Obama’s first term—to an institution that has come to sound more and more like an enraged local school board.

There was ample reason to worry. The Affordable Care Act (now known to its supporters and detractors alike as “Obamacare”) had been challenged by 26 states as unconstitutional as soon as the President had signed it into law in March 2010. The initial legal objection had seemed improbable—that the law’s “individual mandate,” which requires most Americans to purchase health insurance by 2014 or pay a penalty, exceeded Congress’s regulatory powers as defined by the Constitution. But as the law’s challengers picked up key victories in the lower federal and appeals courts, this David v Goliath lawsuit picked up steam. More than one federal judge saw this case as an important opportunity to roll back Congress’s virtually limitless power to regulate the national economy.

More importantly, public opinion was overwhelmingly behind the challengers, who persuaded Americans that a federal law forcing people to buy health insurance today would allow the government to force those same Americans to buy gym memberships, General Motors cars and broccoli tomorrow.

By the time the healthcare challenge reached the highest court in the land last March, the very same Americans who supported many individual provisions of the law (including provisions allowing young people under 26 to stay on their parents’ healthcare plans, for example) were certain that the entire bill was nevertheless unconstitutional. The Obama administration had done virtually nothing to persuade Americans that the healthcare law was a good thing, or even a constitutional thing. When the healthcare cases arrived at the Supreme Court’s white marble sanctuary in Washington DC, the court was poised to strike down the individual mandate, and thus to give most Americans precisely what they believed they wanted: freedom from forced broccoli.

But there was one other issue playing out at the Supreme Court this spring: the court’s public image problem. Since 2010, for the first time in a century, the court’s conservative judges had all been appointed by Republican presidents and the liberal judges had all been appointed by Democrats. The court was still seeing twirling birds and cartoon stars after its unpopular 2010 decision in the “Citizens United” case, when it struck down key parts of a bipartisan campaign finance reform law, thereby allowing corporations to donate unlimited amounts to political campaigns. The court’s ruling, said critics, has effectively sold the US presidential election—beginning with this year’s race—to the highest bidder. The backlash to the “Citizens United” decision came as a surprise to the court, as did new polls showing that it now enjoyed its lowest public approval ratings in decades. When it came to Obamacare, most Americans were certain the justices would vote according to their own political preferences.

Unsurprisingly, then, as oral arguments—the time allocated for the presentation of the case, with questions from the justices—unspooled over an unprecedented three days in March, it became clear that the four liberal justices largely supported the law and the claims that it was constitutional, and that at least three of the court’s conservatives would quite happily strike it down in its entirety. The two other conservatives—Chief Justice Roberts and Anthony Kennedy—gave the impression over those same three days that they might be up for striking the entire law as well, at least with the aid of a good stiff drink. Suddenly it started to look as though the entire fate of the healthcare law would rest in the hands of a single “swing” justice, the sphinx-like Kennedy, and Americans began to get nervous.

Justice Kennedy, who was appointed by President Reagan in 1988, is a reliable conservative but he has voted with the court’s liberal wing in a variety of high-octane cases, ranging from abortion rights, to gay rights, to the criminal rights of juvenile offenders. He seemed unlike the Tea Party justices at the court, in both his personal affect and doctrinal history. In the days after the case was argued, court watchers noted that while Kennedy is a stalwart supporter of the concept of liberty (good news for the opponents of Obamacare!) he is also a staunch proponent of personal responsibility (bad news for the opponents of Obamacare!). The crystal ball was cloudy. Muttered observations he made at the arguments were parsed for deeper meaning. And then Time magazine threw Kennedy up on their cover and all but declared him the king of the court.

That’s when an awful lot of Americans began to ask themselves whether they really wanted the fate of the single most important piece of social legislation passed in decades, to be decided by a king, much less a court. Healthcare expenditures currently amount to about 18 per cent of GDP, and a lot of increasingly grumpy Americans started to talk disapprovingly about such a huge chunk of the economy being regulated by an elite and out-of-touch Justice Anthony Kennedy; the only scenario more worrisome than having it regulated by an elite and out-of-touch Congress.

President Obama added to this chorus of disapproval with some sharp words for the court after oral arguments. And commentators on both sides of the healthcare divide spent the months before the final decision trying alternately to love-bomb Kennedy and Roberts into upholding the law, or stiffen their resolve to strike it down. It was all a little bit sad.

Layered beneath the drama is the fact that the process of confirming new Supreme Court justices has gone from being a sleepy morning’s work at the Senate to a week-long prime-time circus. Former Justice John Paul Stevens, who retired from the court two years ago after 34 years of service, was confirmed 19 days after he was nominated by then-President Gerald Ford in 1975. His was the last confirmation hearing not broadcast live on television. Stevens’s successor, Justice Elena Kagan, by comparison, was pounded about her politics and ideology by the Senate Judiciary Committee for almost a week as Americans looked on breathlessly. She was confirmed to the Supreme Court almost three months after she was nominated by President Obama. Confirmation to the US Supreme Court has become the closest thing we have to a rousing session of bloodletting at the Roman Colosseum.

It is hardly surprising, therefore, that Americans have come to believe that a lifetime of tenured service at the court is a consummately political reward for the nation’s most consummate political actors. That impression was only strengthened at oral argument in the healthcare cases, when some justices abandoned legal or constitutional arguments altogether in order to fire off cable news-style sound bites about the merits of the law. These heated exchanges suggested that the political had well and truly become the personal at the highest court in the land.

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But there was a twist at the end of the tale. Reporters gathered in the heat of the morning on 28th June and were shocked to hear Chief Justice Roberts cast his vote with the court’s liberals to uphold the individual mandate (so long as we can all call it a “tax”) and to thus preserve the Affordable Care Act in its entirety. Four very angry dissenting conservative justices excoriated the Chief Justice for a decision that may have been “Solomonic” in that it enraged almost everyone; but was also brazenly political, in that it seemed to privilege the public worries over an unelected court and its lifetime-tenured Chief Justice, over the constitutional question at hand. In the legal opinion Roberts gave to explain his decision, the most important thing he did was announce that it was the job of the elected branches of government to resolve this conflict, not that of the court. Thus, with a stroke of the pen, the Chief Justice ensured that Obama versus the Supreme Court will not be a theme of the November election. He seems similarly to be betting that the current mini-revolt called Mitt Romney versus the Supreme Court will soon die down.

Pundits on both sides of the aisle compared Roberts’s decision to the landmark 1803 case of Marbury v Madison, in which then-Chief Justice John Marshall enshrined the court’s ability to limit the power of Congress by declaring legislation unconstitutional. Marshall took a small personal political hit for his troubles, but he turned the idea of an oracular Supreme Court into a powerful piece of American mythology. This time round, Justice Roberts had saved the court, saved the law, and saw his name become the headline for the first time in his seven years at the court.

Within days of the release of the healthcare decision, unprecedented leaks—most likely from the court’s conservative justices—revealed that the Chief Justice may well have switched his vote in the weeks between oral argument and the final decision day. That’s perfectly permissible but it looks bad, raising questions about the legitimacy of the decision itself. Rumours now suggest that Roberts originally intended to vote with those who wished to strike down the law, then changed his mind (“went wobbly” seems to be the dominant phrase) to vote to uphold it.

Nobody truly believes that Chief Justice Roberts woke up one morning and decided he really liked the President’s healthcare reform bill, or that he would now be a liberal. Roberts will lead the court for the next 20 to 30 years and he was chosen precisely because he understands that fundamentally reshaping the constitutional architecture is a game of chess, not a nuclear war. What he did with his masterful—if incoherent and probably inconsistent—judgement, was lay the groundwork for a campaign to shift the court back to the right that will continue long after his conservative detractors have departed the bench. Roberts then slipped away for a vacation in Malta, leaving Americans to scratch their heads and wonder, “who was that masked man?”

Roberts enabled the Supreme Court to dodge a political bullet; handed the healthcare fight back to the presidential candidates, and preserved the authority of the Court to live to fight another day.

As is often the case, that day is only a few short weeks away. This autumn the court may have an opportunity to make landmark changes in affirmative action law and voting rights. It may also have to determine whether same-sex marriage is constitutional. Having saved the reputation of the court, Roberts himself will most likely continue to oversee sweeping changes in each of those constitutional areas.

Roberts likes to compare the Supreme Court to a turtle. The law, he says, is a slow-moving, deliberative process that endures precisely because it is careful and incremental. What he forgets to add is that, much like the turtle, the court can sometimes disappear into its shell when things get hairy, and emerge intact, with the brief spin of a news cycle, and re-emerge to an American public that always forgives, and invariably forgets.