JONATHAN COHN MAY 1, 2012
-
Read Later
READ LATERAvailable only to subscribers. SUBSCRIBE TODAY
-
Listen
ARTICLE AUDIO
- Font Size
TNR's latest editorial is about the lawsuits challenging the Affordable Care Act and the implications that go beyond health care policy:
The architects of American government wanted to protect individual liberty, from overzealous majorities and an overbearing federal government, so they insulated the Court from political influence and gave it final authority to say whether laws were constitutional. But overruling democratically elected officials is an inherently audacious act, which is why the justices must use their power in this regard thoughtfully. They should presume laws to be constitutional, just as trial courts presume accused criminals to be innocent. And they should at least try to put aside partisan loyalties and policy preferences, making a good faith effort to discern the Constitution’s meaning and to respect precedents. ...
In recent years, American government has become gradually more dysfunctional, as lawmakers have dispensed with traditions like allowing majorities to rule in the Senate or putting some issues, such as lifting the nation’s debt ceiling, beyond partisan politics. The question of who is to blame for the collapse of these mores is a longer discussion for another time. (We place more blame on the right than on the left, though we certainly acknowledge that liberals have played a role.) What is beyond dispute, however, is that a five-to-four decision to invalidate the Affordable Care Act would signal another departure from governing mores—only this time it would be judges, rather than politicians, wreaking the havoc. It would further diminish the Court’s standing, in and out of Washington, and haunt the justices the next time they feel a law—whether a conservative or liberal one—demands judicial rebuke.
We don't know yet how the Court will rule. Smart money still says it could go either way. But if five justices on the Supreme Court do strike down the law, they'll be rewriting the law, whether or not they admit it. Even many conservatives, including two of the best-known conservative judges on the federal bench, think the law falls well within the established limits on federal power.
Yes, there are times when the justices should declare that the constitution means something different than what their predecessors thought it did. But those are special cases—because violations of liberty are obvious and unambiguous, or because standards of propriety of clearly changed. One such case was Brown v. Board of Education. Another, more recent one was Lawrence v. Texas, the 2003 decision invalidating sodomy laws and a previous ruling upholding them. For reasons I've explained previously and on more than one occasion, I don't think this case meets those criteria.
The justices may disagree. But, if they do, they'll risk damage to the Court as an institution. Brad Joondeph of the ACA Litigation Blog made this point right after oral arguments ended:
a decision invalidating the ACA (especially one that takes down the Act in its entirety), rendered by a predictable 5-4 split, will serve to reinforce the notion among many Americans that the Court is no more than another partisan institution, one that operates much like the other branches. That would be wrong factually, but I fear it would be the prevalent perception. And such a perception could do real lasting damage to the Court.
The danger seems especially acute given all the other highly partisan, ideological issues presently heading the Court's way. Consider the following cases the Court is apt to decide in the next 2 or 3 years: the Arizona immigration case (to be argued next month); the Texas affirmative action case (to be argued in the fall); the Citizens United sequel from Montana (cert petition filed earlier this week); the constitutionality of Section 5 of the Voting Rights Act (currently percolating in the courts of appeals); the constitutionality of California's Proposition 8 banning gay marriage (currently awaiting a decision from the Ninth Circuit about an en banc hearing); and the constitutionality of the Defense of Marriage Act (also percolating in the courts of appeals).
... steady stream of highly divisive, conservative 5-4 decisions, led off by a decision to invalidate the most important federal statute in a generation, could be toxic. It could take years for the Court to regain its standing among the American public.
This is not a partisan concern. It is a concern--voiced eloquently by Chief Justice Roberts on several occasions--rooted in beliefs about the importance of the Supreme Court, the independence of the federal judiciary, and ultimately the rule of law.
14 comments
Of course, how do Americans miss what they never had; and if they don't miss what they never had, why would the Court lose standing among the American public. If, contrary to my prediction, the Court invalidates ACA, I'm not sure who was more arrogant, the Democrats who believed the Republicans had been banished to the wilderness for several election cycles and passed controversial legislation the benefits of which would not be felt by most Americans for at least four years, or the Court for never giving Americans a real opportunity to decide for themselves whether they actually approved or disapproved that legislation.
- rayward
May 1, 2012 at 5:38pm
"a decision invalidating the ACA (especially one that takes down the Act in its entirety), rendered by a predictable 5-4 split, will serve to reinforce the notion among many Americans that the Court is no more than another partisan institution, one that operates much like the other branches. That would be wrong factually, but I fear it would be the prevalent perception." Um, how or why exactly would this be wrong?
- cspencef
May 1, 2012 at 5:49pm
Just thought of something to depolarize the Supreme Court, at least over the next few decades as the current members are replaced. Restrict whom the president can appoint to members of the federal appellate courts who were appointed by a president of the opposite party. That would put a restriction on where future members of the Court can fall on the ideological spectrum.
- sighthnd
May 1, 2012 at 5:55pm
I think three six-year automatically renewable terms would be sufficient, with a fourth term permissible if the sitting president approves.
- ironyroad
May 1, 2012 at 6:03pm
Jonathon: Thought you would be all over this article from this weekend's NY Times, adding to the proof of the health care laws positive impacts: http://www.nytimes.com/2012/04/29/health/policy/in-hopeful-sign-health-spending-is-flattening-out.html
- RobertW
May 1, 2012 at 6:12pm
RobertW - Coming soon! (I'm just a little slow.) cspencef - I'd like to think, as the editorial implies, that the justices at least make good faith effort to put constitutional principle before politics. But I'm a lot less sure of that than I used to be.
- Jonathan Cohn
May 1, 2012 at 6:31pm
Biased courts precede awful events. Before the Civil war, we had a system of fugitive slave hunter commissioners who captured fugitive slaves and then, as judges, tried them. If the Commissioners convicted the captured prisoner, they got $10.00. If the prisoner was not convicted, the Commissioner got only $5.00. Prior to the American Revolution, seized ships were brought before the Admiralty Court for forfeiture and then sale. If the judge approved the forfeiture, the judge was paid from the proceeds of the sale. In Nazi Germany, German lawyers and judges took an oath of personal loyalty to the Fuhrer and could be arrested for judicial misconduct.
- Nusholtz
May 1, 2012 at 8:02pm
Btw I just noticed that the Political Wire menu at the right-hand side of the page hasn't been updated since last Friday. Odd.
- ironyroad
May 1, 2012 at 8:06pm
I really don't know why the Supreme Court has to pretend to be ideologically and politically impartial, and I doubt that the hardball-playing right wingers who have plotted for years to capture a majority on the Court will now be squemish about doing with it just what they always intended. These people on the Court are not very smart and lack any concern for the legitimacy of our political institutions and processes - Citizens United being more than adequate proff on both points. I fully expect the Court to rip down ACA in its entirety. Life will go on.
- purcellneil@aol.com
May 2, 2012 at 1:37pm
With respect, purcellneil@aol.com, life will go on if the justices behave with the complete partisanship which they began displaying with Bush v Gore and continued with Citizens United. But, America's democracy will be changed forever, our essential faith in our system of government will be rattled. Warnings about the Nazis and their brutal manipulation of all levels of society are not over the top here. Adherence to the rule of law in very important, especially, ahem, BY THE COURTS. Respecting the votes of both individuals and the legislature is the essence of democracy. This court has already gone way out of bounds imo - of course I agree, as you say, that's why they were appointed. But that isn't something that should just be accepted, ho hum. It's actually quite frightening.
- Sophia
May 2, 2012 at 3:42pm
John-- sorry but your article is seriously flawed. You quote without objection the tnr editorial saying "The architects of American government ..gave it {SCOTUS} final authority to say whether laws were constitutional." The founding fathers did no such thing...the power to declare laws constitutional or not was devised by John Marshall. You state "a decision invalidating the ACA (especially one that takes down the Act in its entirety), rendered by a predictable 5-4 split, will serve to reinforce the notion among many Americans that the Court is no more than another partisan institution, one that operates much like the other branches. That would be wrong factually, but I fear it would be the prevalent perception. And such a perception could do real lasting damage to the Court." Seems to me that the prevalent opinion of the unwashed masses has it more right than most in the pundocracy, including tnr.
- drofnats1
May 2, 2012 at 7:30pm
Article III, section 2 provides, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, ….” So, what kind of case would arise under the Constitution that would not involve passing on whether an act of one of the other branches of government is constitutional? Dhurtado
- NR143296
May 2, 2012 at 9:49pm
Does anyone believe that Cohn-less-ness and TNR are unbiased observers of SCOTUS?? Seriously -- get a clue. A left-wing partisan's opinion is useless. Give me a rational argument that considers all data. You have not. And can not. E.g.., The notion that the commerce clause imbues unlimited power on Federal Gov is clearly wrong.
- mr_rationale
May 3, 2012 at 10:03am
No lawyer here, but it seems to me that the idea that "the notion that the commerce clause imbues unlimited power on Federal Gov" is what is clearly wrong. The rationale for invoking the commerce clause to justify the ACA on constitutioal grounds does not require the supposition of 'unlimited power'. A phrase like 'unlimited power' in this instance is a red herring, and is intended to divert attention from the precedents and limits which support the constitutionality of the ACA. (No doubt there are others present who can make this elementary point much more eloquently than I.) BTW, it would appear that the Rat-mn has learned how to spell 'rational'. Will we see the dropping of the final 'e' in his username before long?
- Haole45
May 3, 2012 at 6:32pm