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Hail the chief justice! His health care vote helps restore credibility to the judiciary
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Thursday's 5-4 Supreme Court decision upholding the constitutionality of the Affordable Care Act (i.e., Obamacare) assures health care for more than 30 million Americans, allows the adoption of innovative ways to limit the debilitating growth of health care costs and buttresses efforts to ferret out fraudulent practices that cost taxpayers hundreds of billions of dollars each year.
But perhaps just as importantly, it salvages the credibility of the Supreme Court as our nation's defender of justice and bulwark against political tyranny.
The hero of the story is Chief Justice John Roberts. Since handing the 2000 presidential election to George W. Bush in another 5-4 decision, the Supreme Court has whittled away at its legitimacy by seeming to delegate all of its authority to a single justice (Anthony Kennedy) who has served as the swing vote in virtually every politically charged case. If only Justice Kennedy's vote matters, why invest in the pomp, circumstance and charade of a nine-member court?
With Thursday's decision, the conservative chief justice plainly decided that the integrity of the court and his own legacy were more important than pandering to the political right. Rather than resting his majority opinion on prior cases establishing the broad scope of congressional authority over interstate commerce, Chief Justice Roberts instead concluded that the "individual mandate" to buy insurance falls within a more limited congressional power to tax. Both the liberal and conservative wings of the court disagreed, each preferring to address the Commerce Clause head on, while disagreeing as to its meaning.
Ultimately, though, the legal contours of the decision may not matter much. Its effects on our health care system will matter far more -- as will the example of dignity and courage displayed by Chief Justice Roberts. The contrast with the recent partisan ravings of Justice Antonin Scalia could not be more pronounced.
I don't remember much about the law school class on administrative law I took from then-professor Scalia in 1981, though he has been quoted as saying, "Administrative law is not for sissies -- so you should lean back, clutch the sides of your chair and steel yourselves for a pretty dull lecture."
But I do recall believing that the Supreme Court was above politics and served to check the excesses of the "political branches" of government. I believed that the courts sought to deliver justice based on the force of reason and respectful reflection applied to discernible facts.
More than any other jurist over the past 25 years, Justice Scalia has eroded such idealism. On Monday, his dissent in the Arizona immigration case read more like talking points for Mitt Romney's presidential campaign than a rendering of judicious reflection. Even conservative legal scholars wonder what he's doing. Federal appellate judge and conservative legal scholar Richard Posner critically blogged, "It wouldn't surprise me if Justice Scalia's opinion were quoted in campaign ads."
Of course, judges are human and their decisions inevitably are informed by political and philosophical preferences.
Research shows that our brains are wired to decide first and justify later. When presented with facts that belie our beliefs, we don't change our minds, we look for reasons to discredit those facts. Moreover, we inherently seek to conform our judgments to those of our favored party.
One study, for example, showed that self-described liberals and conservatives were more likely to favor or oppose proposed legislation based on which party proposed it than based on its substance. (Social scientists refer to this phenomenon as "motivated reasoning.")
But while partisan judgments may be inevitable, judges are responsible for assuring respect for the law itself. In this regard, there are at least three problems with overt partisanship on the Supreme Court.
First, an overtly partisan Supreme Court runs counter to a fundamental premise of our Constitution, as described by Andrew Hamilton in Federalist No. 78. Independent courts protect "the general liberty of the people" from oppression by the political whims of the legislative and executive branches. Conversely, "there is no liberty, if the power of judging be not separated from the legislative and executive powers." Accordingly, the Federal Code of Judicial Conduct declares, "A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor or fear of criticism."
Second, an overtly partisan Supreme Court undermines respect for, and therefore the legitimacy of, the courts and law. Justices of the past were keenly aware of their responsibility to assure respect for the law and its institutions. For this reason, the Supreme Court of 1954 worked to reach a unanimous 9-0 decision to end segregation in Brown v. Board of Education, despite initial divisions among the justices. The Judicial Code also declares, "A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."
Third, an overtly partisan Supreme Court contributes to the increasing dysfunction of government. A Supreme Court justice is the closest thing we have to Plato's philosopher-king. We expect justices to divine and impart wisdom and for their words to serve as pillars of social order. When it becomes evident that justices instead seek to promote a partisan political agenda, we've reached a place where we no longer are shocked when the Senate majority leader declares that his party's "single most important" goal is not to act in the best interests of the country but to defeat a president's bid for re-election.
Why might the Supreme Court decision on health reform begin rebuilding the integrity of the court? After all, wasn't it simply another 5-4 decision?
The difference lies in both substance and form.
In substance, the decision upholding the Affordable Care Act was a landmark in affirming the powers of the federal government, not to mention in its wide-ranging effects on our health care system.
In form, it appears that Chief Justice Roberts sought (like Chief Justice Warren in 1953) to find common ground on perhaps the most divisive issue of our time. Although he failed to reach anything close to unanimity, he did reach across the conservative-liberal divide while restoring respectful judicial discourse, as reflected in the reasoned tone of the conflicting opinions.
It is probably too much to hope that our politicians will follow the Supreme Court's lead and return to the level of civility necessary to deal with the nation's biggest problems. The slim thread upon which it upheld the Affordable Care Act highlights its own precarious hold on public trust.
But today, I do have hope. I can at least recall the idealism of my law school days.
Correction/Clarification: (Published July 10, 2012) The Supreme Court's landmark school desegregation decision in Brown v. Board of Education was handed down in 1954. The wrong year was cited in an op-ed column June 29.
First Published June 29, 2012 12:00 am
