Supreme Court is a tempting target. It’s easy to spot the justices, their black robes giving them away against Washington’s white marble. Two-thirds of Americans can’t name a single justice, and most of Constitutional law is too dense for waiting-room reading. The justices have all the making of tailor-made scapegoats. Even so, most Americans recognize the Court as an important institution, curbing excessive legislative and executive power and ensuring equality before the law. As one of the top musical hits of 1966 my mom often hums makes clear, “I fought the law and the law won.”
President Obama created quite the stir last week when he, unprompted in a press conference, announced that should the Supreme Court overturn his signature health care legislation, it would be an “unprecedented” example of “judicial activism.” For me, this was a moment of political deja vu. Several weeks earlier, I attended a Liberty Fund conference at which some of the assigned readings featured Theodore Roosevelt’s contempt for the Court. Teddy, America’s 26th president and outspoken early progressive, denounced judicial supremacy because it was “both absurd and degrading to make a fetish of a judge or of anyone else.” The tyranny of the majority was a non-issue, he insisted. Should minority rights come under siege, this testosterone-rich leader would ride to the rescue. Thankfully, the executive is not the guardian of individual liberties; the Constitution is.
At the time, I highlighted the passage as an unnerving, old-fashioned joke on America’s tradition of checks and balances. But President Obama’s remarks last week were eerily similar to the Bull Moose spokesman himself. On some level, I know where Teddy and Obama are coming from. The nine Supreme Court justices, appointed by the President and confirmed by the Senate, are indeed unelected and unaccountable. But do we really want to subject the highest court in the land to endless election push-backs? Look at the countless referendum and recall initiatives that plague historically progressive states like California and Wisconsin year in and year out. Democratic uprisings make for good protest signs and drum choruses, but not the best guaranteed rights. It’s time to re-emphasize that the United States is a constitutional republic, not a direct democracy. Throughout its history, the Supreme Court has overturned hundreds if not thousands of federal and state legislation on Constitutional grounds. For the Court to label the ACA an overreach would be as about as “unprecedented” as Sharples serving Pasta Bar.
According to the collective consciousness of the mainstream news-cycle, the Court’s “conservative” justices will earn a nasty election-year retaliation should they strike down all or part of the Patient Affordable Care Act (ACA). Supposedly the Court is so fraught with partisan puppets, that any legal objection to the ACA will symbolize nothing but dislike for the President, veiled in a Constitutionally-transparent cloak. Commentators have already taken to calling this the “same court” that handed us Bush v. Gore. Hold on a second. Justices Roberts, Alito, Kagan and Sotomayor were far from the Supreme bench back in 2000. Yes, the Court decides 22 percent of cases along 5-4 ideological lines, with Justice Kennedy seesawing back and forth between the conservative and liberal wings as he sees fit. However, over 40 percent of cases are decided 9-0, meaning the justices are cooperating more in those hallowed halls than outsiders may think. Comparatively, the ACA initially passed the House without a single vote from the opposition party. You can say a lot about the ACA, but it definitely wasn’t passed by a “strong majority,” as the President suggested.
Unfairly, but perhaps predictably, the four more “liberal” justices on the bench have been almost entirely immune to the bad press. Most everyone agrees that Solicitor General Verrilli, who phlegmatically coughed and sputtered through much of the oral arguments, did not put on a good show. Why, then, is it assumed that Ginsburg, Breyer, Kagan and Sotomayor will side with the Administration? Isn’t it partisan to think these justices, whose foremost obligation is to uphold the text of the Constitution, will automatically back Verrilli’s team?
Following Mr. Obama’s comments, the Fifth Circuit, in an unusual move, demanded to know if the President in fact believed in judicial review at all. Suddenly, news anchors around the country were pronouncing Marbury v. Madison (1803) and calling Con Law professors as experts. I might have been elated at all this talk of the Constitution, except few are quoting United States v. Lopez (1995) and United States v. Morrison (2000), where the Court confirms the Commerce Clause does indeed have outer boundaries. Verrilli was unable to cite any such boundaries. Forget the election-cycle. Shouldn’t all justices, who have literally dedicated their lives to the Constitution, be a little nervous about this one?
The Justice Department has confirmed that the President honors judicial review. Last time I checked, middle school kids still talk about checks and balances. Let’s not abolish a perfectly good lesson plan.
Danielle is a sophomore. You can reach her at dcharet1@swarthmore.edu.
