Evidence of the court’s political responsiveness may be surprising, but perhaps it shouldn’t be. The Constitution does not establish a strictly independent Supreme Court — nor should we expect it to given the framers’ suspicion of unfettered power.
James Madison warned in the Federalist Papers, for example, that societies might be tempted to create “a will in the community independent of the majority” out of a misguided desire to limit democracy. “This, at best, is but a precarious security,” he wrote, “because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties.”
Instead, as Obama suggested, the Constitution establishes a constrained and even democratically accountable Supreme Court. While we often hear of the justices’ constitutional guarantees of lifetime tenure and protected compensation, they in fact enjoy neither.
Their tenure is conditional on “good Behaviour,” and Congress has the sole authority to decide what bad behavior might warrant their removal. And while their salaries may not be reduced during their time in office, Congress is not required to increase judicial salaries with inflation, allowing for effective decreases. Both these provisions may encourage the justices to defer to congressional preferences.
Alexander Hamilton asserted as much when he wrote that the impeachment power prevents the justices from acting as free agents: “There never can be danger that the judges ... would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations.” Hamilton also noted Congress’ power to increase the justices’ salaries — or not — writing that “a power over a man’s subsistence amounts to a power over his will.” And we might expect the court to be particularly responsive to the House, given its agenda-setting role in both impeachment and appropriations.
It turns out that these constitutional provisions appear to work as expected. But, unfortunately for the president, the justices have an incentive to defer to sitting House majorities, not the majorities that enacted the laws being considered. A defeated party can expect little sympathy from the court for its past policy victories.
So even though the president may have won the battle as the better constitutional theorist, McConnell and his allies are likely to win the war over the Affordable Care Act. In 2010, Republicans gained 63 seats in the House, even more than in 1994. We must expect the court to defer to this sitting majority’s hostility to the health-care law.
But if the court does strike down the law, it will not be because it is independent of the elected branches, but rather because it is not.
Anna Harvey is an associate professor of politics at New York University and the author of the forthcoming “Rethinking Judicial Independence” (Yale University Press). She can be reached at firstname.lastname@example.org.