Supreme Court tipping scales of partisanship

Posted: May 30, 2012

JUST A FEW WEEKS before the U.S. Supreme Court’s hearings in March on the constitutionality of several parts of the Affordable Care Act — a/k/a Obamacare —an overwhelming majority of the nation’s legal scholars predicted that the law would be upheld.

They saw little substantive difference between the health-care legislation and other social programs that have been passed without constitutional challenge since the court interpreted the Constitution’s commerce clause as supporting Congress’ power to pass New Deal legislation like Social Security and various economic and health and safety regulations.

Silly them: They were looking at the law and how easily it fit in with eight decades of legal precedent, and figured that members of the U.S. Supreme Court would do the same — that’s its role as the third branch of government, at least that’s what we were taught in school. Some even predicted a relatively lopsided 7-to-2 decision.

But during the three days of legal arguments, it became clear (and alarming) that the questions of several of the conservative justices simply parroted Republican "talking points" about the legislation, questions that appeared based on their disagreement with the choices that a democratically elected — and, yes, big-D Democratic — Congress had made to deal with a pressing national issue that does indeed affect interstate commerce (as in, it represents one-sixth of the nation’s economy). Beyond that, justices revealed some rather wide gaps in their understanding of both how health insurance and the health-care system works — and also how it hasn’t worked for millions of Americans, with disastrous effects for individuals and a huge financial drag on all of us, insured or not.

Ordinary Americans, on the other hand, had little faith in the court’s willingness to follow the law. They told pollsters they believed that many of the justices would allow political ideology to determine their position.

(Or maybe their wallets. At least one justice, Clarence Thomas, has already benefited — and presumably would continue to benefit — from attacking the law: His wife, Virginia, worked for an organization that has been lobbying against health-care reform since before the Affordable Care Act was passed in 2010.)

This isn’t a defense of the insurance mandate that is at issue in the legislation. It’s a defense of Congress’ power to make the laws and the justices’ responsibility to interpret them using some recognizable constitutional standard.

But in decisions like the infamous Bush v. Gore case to the Citizens United case that has turned this year’s presidential election into a contest of billionaires, the justices’ indulgence in partisan-tinged questions and their flouting of appearances of conflict of interest are raising questions of the court’s legitimacy.

And while recent interest in the Supreme Court has focused a lot on the question of abortion and whether Roe v. Wade would stand, many conservative judges’ area of interest is far more sweeping: They want to seriously curtail the power of the federal government.

The Supreme Court is at a crossroads. The next president will likely make two or even more nominations that could ensure for decades a conservative majority to take the country backward — or strengthen the court as it pursues the role assigned to it in the Constitution.  

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