Friday, July 6, 2012

Do the Supremes Matter?

The Supremes, one of the most successful American groups of the 60s in terms of charted singles, released one song that Supreme Court Chief Justice John Roberts might be singing himself these days:

Although Roberts' decision to uphold Obamacare is scarcely a week old, it is already proving highly controversial, enough such that, at the very least, most conservatives have turned on the man who had previous commanded a measure of respect. Whatever "love" existed between conservatives and John Roberts is now virtually gone.

But the negative ramifications of the Decision may transcend the conservative base. Indeed, with figures across the political spectrum agreeing that Roberts' ruling was, at least in part, political, there exists the potential for long-term damage to the three crucial pillars of the Supreme Court's reputation, not only among conservatives, but across all political groups: its reputation for sound rulings; its supposed apolitical nature; and its status as the final say on Constitutional questions--an interesting result for an act whose intent was to preserve the Court's legitimacy. But an examination of each of these three shows that each was dubious at best to begin with anyway.

Until Roberts' ruling on Obamacare, there existed a profound respect for the Supreme Court among the American public at large, bordering on reverence. Ever since its legendary ruling in Brown v. Board of Education, in which the Court ruled that the "separate but equal" facilities upheld by Plessy v. Ferguson, an earlier case, were unconstitutional, most assumed that the Court would always do the right thing. But--wait a minute. The Court was also responsible for the awful decision in Plessy v. Ferguson, which allowed racial segregation to fester for decades. Even a cursory look at the Court's record over the years reveals that it has not always been on liberty's side.

In Dred Scott v. Sanford, a slave whose master had moved to a free state petitioned for freedom; the Court didn't even bother to take up the case, since it was obvious to them that the petitioner was a slave. In Schenck v. United States, the Court lent its imprimatur to President Woodrow Wilson's harsh tactics for dealing with public dissent against World War I. In Buck v. Bell, the Court upheld a Virginia law which called for the sterilization of the mentally deficient. In Korematsu v. United States, the Court upheld President Roosevelt's World War II-era internment of Japanese-Americans. And in Roe v. Wade, the Court--as even pro-abortion legal academics will admit--essentially created out of thin air the right to an abortion and forced it unilaterally on all 50 states. Obviously, all of these cases have their own intricacies and complexities. But each of the decisions casts some doubt on the idea of the Court as a consistent force for good.

The Court's apolitical reputation, too, is something of a myth in the modern age. Ever since FDR browbeat the Court into submission with his threat to expand the Court with justices that agreed with the New Deal, the Supremes have had to take politics into account in a way that they didn't really have to before. Interestingly, this rendered the Court into a sort of super-legislature, the true arbiter of the Constitution. In Cooper v. Aaron, the Court (in)famously declared itself  "supreme in the exposition of the law of the Constitution.”

The most famous, and most well-regarded, example of the Court's acting politically is Brown v. Board Education, in which Chief Justice Earl Warren assiduously attempted to convince all the other justices to reverse the ruling maintained since Plessy v. Ferguson, as if they were but common politicians. On the other hand, similar behavior in Roe v. Wade produced a massive preemption of democratic authority, which resulted in the intense division over abortion that still fractures the nation today. Thus, even if the Court has become a sort of legislature of legislatures, its record therein is also questionable.

Finally, the Court's reputation as the last stop for not just Constitutional but also political questions in this country has come under the most direct assault by the Obamacare ruling. Though conservatives spent months preparing for the court case and still lost, virtually all responded defiantly, promising to charge on to November, when the true decision will be made by the voters. Although liberals urged the country to "move on," many still oppose Obamacare, and their respect for the Court has diminished somewhat as a result.

Ultimately, Roberts' decision, which developing stories are increasingly attributing to external pressures on the Court from other branches of the government as well as liberals in the media and academic establishment, may come to diminish voter respect for the Court for several reasons. If Romney wins in November, Republicans take back both Houses of Congress, and they use majority power to repeal most of Obamacare, then the Supreme Court becomes a dead letter, a promulgator of yet another poor decision. And even if Obama does win in November,  Roberts' decision to allow factors unrelated to the Constitutionality of Obamacare to influence his ruling may forever mark the Court as political, no better or worse than every other aspect of our political system, and just as susceptible to cynicism.

But this may be a good thing. After all, the judiciary branch merits only a few mentions in the Constitution itself; the Founders probably never intended for it to become the political powerhouse it now is. Abraham Lincoln, for his part, certainly did not. Here's a quote from his First Inaugural, undoubtedly in reference to the then-recent Dred Scott decision:
"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
As the November elections will show, it is the people, acting through the legislature and other means, who ought to bear the primary responsibility for fostering a culture of liberty. As Ira Stoll points out over at Reason:

"...[A]nyone who thought that America was going to be rescued from ObamaCare by lawyers or judges turns out to have been wrong. That is a job that will require not only lawyers but doctors, businessmen, politicians, and the American voters."
This is a much more difficult task, to be sure, but no one ever said that freedom was easy.

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