The least politicial branch

The least politicial branch
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Debate continued to rage this week over the U.S. Supreme Court case Florida et al v. Department of Health and Human Services. Or, as it may just as well be called, Conservatives v. Obamacare.

The oral argument portion of the case concluded last week, and it’s not much of a stretch to say that it wasn’t exactly a shining moment for the White House. Obama’s head lawyer, Solicitor General Don Verrilli, Jr., was widely characterized as having offered a rather clumsy and bumbling defense of the administration’s controversial Affordable Care Act, particularly the so-called “individual mandate” part, which demands all Americans either possess health insurance or be fined for insubordinance.

This is, of course, the root of the entire “socialistic tyranny” argument Tea Party types use against the moral legitimacy of Obamacare, as well as the constitutional dilemma raised by its more serious critics. As the Supreme Court’s conservative wing repeatedly asked — without receiving a satisfying answer from General Verrilli — if the federal government can demand the entire citizenry purchase health insurance or face penalty, what’s to stop the feds from forcing Americans to buy all sorts of other stuff too? In one of the more memorable sound bytes to emerge from the hearings, Justice Samuel Alito specifically questioned why the federal government shouldn’t mandate everyone buy funeral insurance while they’re at it. Everyone might need health care, he said, but everyone needs a funeral eventually, too.

Verrilli’s poor performance (in another memorable quip, CNN’s Jeffrey Toobin dubbed the administration’s attempted defense a “train wreck“) quickly sired a mass fear among Democrats that their most hard-fought and iconic domestic policy victory of the last four years might be closer to being deemed unconstitutional than previously assumed. This, in turn, prompted the President himself to weigh in this week and attempt to alleviate the fears of his liberal base. In an off-topic moment at a Monday press conference (featuring a cameo appearance by beloved Canadian strongman Stephen Harper) Obama warned that any Supreme Court that overturned his health care act would be committing an “unprecedented, extraordinary” deed. In the past, conservatives have rightly worried that “an unelected group of people would somehow overturn a duly constituted and passed law,” he said, adding that “this is a good example.”

Anyone who’s observed politics for more than four years will have little difficulty noting just how extraordinarily opportunistic this line of argument is. It’s obviously not “unprecedented” at all for the Supreme Court to overturn a “duly constituted and passed law” — this is actually one of the most precedented acts of the entire U.S. political system, and the whole reason the Supreme Court even exists in the first place. From Marbury v. Madison to the era of FDR and the New Deal, to Brown v. Board, Roe v. Wade, and, most recently, Citizens United, the Supremes have rarely been shy about vetoing federal statutes that they deem to have overstepped constitutional bounds. For a Harvard-educated constitutional law scholar like Obama to deliberately and unapologetically ape the language of anti-judge right-wingers simply because things aren’t going his way exposed yet another populist, reactionary crack in the president’s supposedly ultraserious, pragmatic persona.

I’m not much of a law scholar myself, but I tend to support to the idea that Congress should be broadly able to pass the sorts of laws it wants so long as their bills make some effort to cite or acknowledge the constitutional roots of their necessity (I was thus a fan of the GOP’s post-2010 promise to always do this). In cases where the constitutional argument is vague due to unexpected modernities or admittedly ambiguous language, I similarly think the courts should defer to Congress’ own interpretations of the situation before weighing in with contrary theories of their own. Part of the reason I think this, however, is because I’m really not convinced the supreme court “idea,” such as it is, has aged particularly well, or proven itself to be very apt at providing the unbiased, non-partisan, non-ideological analysis of legislation it promises.

Ever since Ted Kennedy successful drove Robert Bork out of the high court sweepsteaks in 1987 simply on the basis that he was too conservative, Supreme Court appointments have been viewed in an ever more unambiguously partisan light. Confirmation votes in the Senate are now divided almost entirely along party lines and presidents openly promise to stack the court on the campaign stump. Following the departure of Justice Souter and the appointment of Sonja Sotomayor, each of the four conservative justices on the current Supreme Court was appointed by a Republican, while all four liberals were chosen by Democrats. All important decisions (including the future of Obamacare) are thus decided by the Court’s lone moderate justice — Reagan-appointee Anthony Kennedy — a man whom almost everyone in Washington hates precisely because of his infuriatingly erratic coyness.

If Obamacare does go down, it won’t be unprecedented, but it will be depressingly political. Kennedy will make some decision, and he’ll side with either the four justices on the right or the four on the left who, in all likelihood, had their minds already made up long before the opening statements were heard. Obama will make cracking down on “judicial activism” a big part of his re-election campaign, and Republicans will fear a 5-4 liberal majority in his second term, should one of “their” judges procede to croak or wander off.

In an era of such intense polarization, do we even need a Supreme Court anymore? If the body is no less predictable, partisan, or political than any other branch, what exactly is the point?


  1. ThePsudo

    Remember when you were criticizing the Canadian Supreme Court for being openly and easily unanimous on issues that should have been highly controversial?

    I agree that partisan SCOTUS appointees is an obnoxious trend. I vaguely remember an argument that there is a division in professional legal philosophy that happens to more strongly coincide with the political division than it used to, but I'm not enough of a legal scholar to say for sure. I will say that the best legal decisions are the ones considered by both sides of the political divide to coincide with existing law and legal precedent.

  2. J.J. McCullough

    Canada and the US are interesting case studies, because neither seems to be doing the Supreme Court thing "right." Which makes me think the idea may itself be fairly useless. The big problem with Canada is that the justices have no accountability to anyone. The big problem in America is that the justices seem to be mostly accountable to partisan interests.

    I think a partisan Supreme Court is preferable because at least the rulings are predictable, have some coherence with a larger, established body of thought, and can be controlled to a degree, while a Supreme Court that just issues random, erratic, unexpected rulings based on nothing other than random pet theories of the individual justices is completely independent from coherence or control. But as I said in the piece, this just means that, at best, a "good" Supreme Court is basically just another weird sort of legislature with life-terms and decisions that can't be revised.

  3. Thomas

    The thing that supposed to keep supreme court justices from being partisan is that once they are on they quite literally have to die or quit to be removed short of something criminal. So while they might have been elected by their respective political lines they tend to be more moderate after they get in.

    Though they still lean toward their respective personal bias. Something like this will probably not sit well even with liberal judges. As forcing people to pay for something isn't a very liberal idea. A liberal idea would be to give the option to not have healthcare.

    Least that's what I'd see it as.

  4. Dryhad

    Frankly I'd expect the opposite to be true, to be honest. Politicians who face reelection tend more towards the centre in an effort to capture more of their opponent's votes. There's a reason presidents typically take bolder actions in their second terms, because they don't have to worry about another campaign. The notion that removing elections from the equation will remove partisanship only makes sense if moderate is the default position, and it just plain isn't.

    I do agree that forcing people to buy private insurance is just a weird way of doing things.

  5. drs

    The justices aren’t *accountable* to partisan interests, but they’re being partisan anyway, and fairly shameless about it too.

    As for insurance: the government has the right to tax and provide health insurance. The government has the right to tax and contract with private providers for goods. Why exactly is mandating that taxpayers contract with the providers on regulated terms meaningfully different?

  6. ThePsudo

    There is a general bias in law against mandating private behavior (as opposed to restricting it), especially in US law. The rare cases where it does occur, there is some institutional need for the behavior — trial by jury fundamentally cannot work unless citizens are mandated to engage in jury duty, and the draft is unworkable without mandatory selective service, to name two. Even then, it is possible to evade jury duty by luck or compelling reason, and the draft is controversial in it's very existence (though tolerated under the premise that it'll never be used again). Mandated health insurance is an issue of efficiency of service, not existence of it, which would be unusual.

    The closest parallel, of course, is auto insurance, which is consumption of a private service mandated by (state) law for all drivers. But that can be evaded by simply opting not to drive (and, in some states, by setting aside a sufficient sum of money to cover what auto insurance potentially would, called self-insurance). There are two differences between existing auto insurance mandates and the proposed health insurance mandate: it would be a federal program rather than a state program (the states have generally fewer restrictions on what mandates they can pass), and it would (arguably) have no opt-out option.

    Whether the health insurance mandate is found unconstitutional or not, it really is a new issue the Supreme Court has not considered before. The quality of the arguments provided deeply matter, and the outcome truly is an open question.

  7. J.J. McCullough

    I think they're accountable in the sense that their confirmation is largely based on their perceived conservatism or liberalness. Once they're in power, the lifetime terms obviously prevent direct accountability, but I'd say the degree to which the left and right actively track "their" judges conduct to make sure they behave with proper ideological vigor is a sort of accountability, too. The judges certainly seem to play along with it. Scalia could never find in favor of the individual mandate without doing profound harm to his own legacy, for instance.

  8. iamanalias

    This case isn't NEARLY so cut-and-dry as four-on-four-on-one. Roberts is almost as likely to be a swing vote than Kennedy on the question of the mandate's constitutionality and his language in argument actually he was even warmer to the law than Kennedy was (although how much stock can be put in argument-based assumptions is rather low, IMHO). Even if the mandate falls, even Scalia said "it can''t be right" that the whole act–good and bad–should fall if the mandate does, although he did later say, "if the statute falls, the act falls" but even so, the rest of the court (silent Thomas excluded, who will vote against government on everything but first question on the right of the court to hear the case at all) didn't seem to want the whole act to fall. Hell, nobody seem to want the Medicaid provision to be struck down (again, sans silent Thomas). So I don't agree with HOW partisan the court is portrayed on this nor on how MUCH power Kennedy is said to have. Are both higher than they should be? Absolutely yes. Damnably so? Absolutely no.

  9. Iokobos

    Supporting the Constitution isn't partisan, it just looks that way to progressives.

  10. Nick Wood

    Well, the branch may not have been as sharply divided as it is now, but politics have always been a major part of its existence. FDR got in big trouble with congress after he tried to add judges so he could fill it with new deal Democrats, for example.

  11. @Cristiona

    Which made Obama's sniping all the stranger. Not even FDR could go toe-to-toe with SCOTUS and win, I'm not sure why Obama and the Democrats think they'll be able to bully and intimidate any more successfully.

  12. ThePsudo

    JJ argues rather plausibly that the nature of the Supreme Court changed with the failed Bork nomination. It is probable that the new, more ideological SCOTUS is weaker than in the New Deal era.

    Still, Obama has quite a project ahead of him.

  13. Guest

    Who says he's trying? It's a great mood setter for the election.

  14. Hentgen

    I find it strange that the Individual Mandate is even in question, and I'm pretty shocked that the government's lawyer bungled its defense so badly. The slippery slope questions are nonsensical arguments.

    The US government has the right to levy taxes. If you don't pay, you are punished.

    The US government has the right to draft its citizens to fight in wars. If you don't go, you are punished.

    The US government has the right to create all kinds of entitlement programs, like Social Security or Medicaid, that are "forced" on their citizens.

    The individual mandate is an attempt by the government to administer an entitlement program in a way that is friendly to market practices. How can this middle-of-the-road way be unconstitutional if just nationalizing health care would be as constitutional as Medicaid? The "slippery slope" is to deny the individual mandate: it makes it necessary for the government to push for full nationalization of health care. That would keep the conservative SC justices awake at night.

  15. KyleEverett

    The only reason this is before the court is because Congress didn't use the word tax. It used penalty for not buying insurance. If they had increased income taxes and then added a health insurance deductible this would be a non-issue. Raising taxes though isn't politically wise, so here we are.

  16. ThePsudo

    I suspect it wouldn't have passed legislation with the word "tax" in it. And without the word "tax" it now faces an uphill battle of judicial review. Even from a progressive point of view, this program might be ahead of it's time.

    Also, all previous entitlement programs have been put forth as charity for the needy, not mandates for all. Government obligating a commercial behavior from 100% of it's citizens has simply never happened before, and might require different legal justifications. Ruling on that new justification is precisely what judicial review is for.

  17. Hentgen

    All Americans are entitled to social security and medicare. The needy get disproportionately more, but everyone gets their old age pension from the government.

  18. @Cristiona

    Taxes, the draft, and Social Security aren't justified via the Commerce Clause. The crux of the problem is that the Federal government is forcing private citizens to engage in private transactions with private companies to create commerce out of whole cloth so they can then regulate it.

    Even more strange, is that the Commerce Clause is interstate commerce. Federal law prohibits buying health insurance out of state. Therefore, they're mandating the creation of commerce for them to regulate, but it's intrastate. The Commerce Clause is always being twisted by Congress (both sides), but this is an all new level.

  19. Virgil

    And to be fair, income taxes are permitted by amendment (16th) , the draft no longer exists, and Social Security exists due to the "switch in time that saved the nine".

  20. Hentgen

    Maybe the legal arguments the government employed aren't the best, but the fact is that the government has "the right" to impose things on its citizens. The US government does it all the time and has no plans on stopping it.

    The law, as it stands, is an attempt to compromise. Should the Supreme Court knock it down, then all they do is force the left to raise the ante. Can't force a private-sector individual mandate? Fine. The government can just set up a basic health care plan for everyone, let people who have their own opt out and pay for it with a tax.

    If the conservatives truly believe winning here will be anything but Pyrrhic, they have another thing coming. Moderates who liked the middle-of-the-road market solution will have no choice but to back the Democrats during the next battle. All the Democrats need to do it is one more majority and then they can gerrymander the districts and push it through the house and senate.

  21. JonasB

    The slippery slope argument has always struck me as being unsound and features poor reasoning. If the SCOTUS justices try and use it in their ruling, I will lose a fair amount of respect for them. To have the SCOTUS use the slippery slope argument would be especially wrong, since even if the Individual Mandate is deemed permissible, any future attempt by the government to impose something similar can still be challenged and overturned. The SCOTUS has in the past not only ruled in ways that expand upon government powers, but it has later made rulings to clarify the limits to those powers. The idea that permitted the Mandate puts Americans on a slippery slope to being forced into buying anything else (I think broccoli was used by one pundit at some point) is factually and historically wrong.

  22. Andrew


    Second, I'm not sure it's really possible to have a "non-partisan" court in the future. As JJ himself points out, Kennedy is "infuriatingly erratic," and he is arguably the least principled of any of the Justices just because he's so wildly inconsistent in a profession that's supposed to prize consistency above all else.

    You can disagree with the conservative Justices, but at least they have a consistent, predictable way of interpreting the Constitution. The same thing goes for the liberal Justices. Kennedy's split-the-baby approach might make good legislative sense, but it's not how courts are supposed to work. Other moderate Justices in recent history, like Sandra Day O'Connor, Lewis Powell, and Potter Stewart ("I know it when I see it") were similarly unable to ever develop a coherent interpretive approach. So the third way, as it were, is totally lacking.

  23. A. Apolis

    Since when was calling something a "train wreck" a "memorable quip"?

    "in another memorable quip, CNN’s Jeffrey Toobin said "hello" "

  24. J.J. McCullough

    It was memorable because it was the most blunt comment any member of the mainstream press had been prepared to offer to that point. After Toobin, suddenly everyone was free to start calling Verilli's performance a train wreck, too.

  25. Taylor

    If you're going to have a country of 300 million people and 50 states in 2012 based on a document written in 1789 for a couple million people and 13 states with some periodic amendments, there will be a need for interpretation with changing times. That's why you need a court, even if it is infected with the insanity of the US culture wars.

    I prefer the standard most Canadian conservative academics put forward, that of the legislature and the Supreme Court both being sources of constitutional thought, with the legislature responding and, if necessary, overriding. In some cases, like strict federalism disputes, there has to be some sort of arbitration.

  26. Virgil

    Its interesting. When dealing with the Court we have politics, but the politics need to be translated into a certain legalese.

    For example, the commerce clause and the enumerated powers under Article I seem to go together. They were interpreted in a fairly conservative fashion up until 1937 when FDR threatened to pack the Court after the NRA and AAA were struck down. Social security was then permitted due to the swing of Justice Owen (not John) Roberts, and for a long time after the liberal interpretation of the commerce clause held sway….no limits on commerce except for the bill of rights.

    The liberals moved on to bigger and better things…namely protection of substantive due process rights and equal protection through the 14th Amendment. This permitted the rights of privacy and ultimately led to the abortion decisions.

    We therefore have a Court where the conservatives….called originalists believe in striking down Federal statutes but leaving the states alone while the liberals believe the opposite. We have had "minimalists" in the past…mostly from Democratic presidents who believed that they should defer to both the states and the Federal government, but the last of these was Byron White, and he retired in 1993. There is some speculation and hope from liberals that Justice Roberts may be of this mold, but there is as of yet no hard evidence. Likewise, Sotomayor and Kagan are also mysteries to a degree. It is almost certain that they will vote to uphold Obamacare but it is not certain how active they will be on 14th amendment cases.

    That leaves Kennedy. Based on earlier decisions that seem to invalidate both Federal and State laws there is the distinct possibility that he may be libertarian in philosophy…the direct opposite of the minimalist. For that reason he may be more inclined to vote against Obamacare than Roberts.

    If there is a 5-4 decision striking the whole law it will be the first time that major legislation from Congress has been overturned since the 1935-36 term. It will then be interesting to see how narrow the grounds are. My suspicion is that it will ultimately stand for the principle that Congress can't force you to purchase something.

  27. Jon Bennett

    Problem is, the view of Rule of Law now has a partisan divide.

    Conservatives believe in a strict constructionist view of the Constitution ("It's a legal binding contract; it says what it says"), and Liberals believe in a "Living Constitution" ("It needs to be interpreted by the era we're in, and it's too much dang trouble to amend it properly"). This is an area of disagreement without any middle ground–closest you get would be the Kennedys and O'Conners who usually go Constructionist, but make exceptions based on what makes sense in their own little worlds.

    And of course, on the extreme, is Ginsberg who wants to use other countries' constitutions and laws to base US decisions without any input from American legislatures.

  28. JonasB

    As annoying as it is to see such partisanship in what's supposed to be an unbiased court, there's no real way to avoid it. The justices have to get on the SCOTUS somehow, and the options boil down to either being appointed or elected. If elected, then you have judges who pander, which is a terrible thing for the highest legal authority in a country to do. If appointed, then you end up with the current situation. The only real way to reduce the partisanship is for Presidents to appoint more centre-leaning justices, but they have no incentive to do so.

  29. Jon Bennett

    What's the Center-Leaning position between interpreting the Constitution as written and trying to apply it as you think it would be written today?

  30. JonasB

    slightly messed up my response to your question. Answer is below.

  31. JonasB

    I don't think there's a specific centre position, but it would be nice if most of the justices didn't always vote along party lines.