In sports, referees and umpires are doing their best when they are unnoticed, or so the saying goes. While Chief Justice Roberts famously compared the job of a judge to that of an umpire, to, as he put it, "call balls and strikes," the sad charade that passed for reasoned debate in the Supreme Court this week reminded those of us who care about the rule of law just how far down the rabbit hole this once august institution seems to be falling.
The "rule of law," that foundational concept that separated our country from the monarchies and dictatorships of Europe for so long, stands for something deeply profound and meaningful in our system of government, not just that we are all equal under the law, but that no one is above the law. Courts do not marshal armies in their favor, we have, as a country, agreed to a social compact where a court's word is final. It is because of this fact that the Supreme Court's authority is at its apex when it speaks as one - in cases that have involved issues like school desegregation, executive power, freedom of the press, miscegenation, contraception and others, unanimity imbued those decisions with a force that affirmed our core principles as a nation.
On the other hand, the closer the Court drifts towards 5-4 decisions, the murkier it makes public policy. Decades after cases involving affirmative action first split the Court, cases are still being litigated based on the decision of a single Justice, Byron White, who attempted to split the difference in the now famous Baake case. Similarly, although the clarion call for school desegregation was unquestioned, when the Justices waded into the granular aspects of policy implementation, and particularly busing, the resulting public backlash was felt from the neighborhoods of South Boston to communities throughout the South. Nearly 40 years after Roe v. Wade, states continue churning out restrictions on abortion rights that are litigated in courts throughout the country.
Narrow majority rulings have become de rigueur as the Court has drifted rightward. While the Court's shift began in the early 1970s, even then, the Court was able to reach consensus in the highest profile matters, such as President Nixon's refusal to turn over the Watergate tapes and whether newspapers could publish The Pentagon Papers. The Court's shift accelerated with the elevation of Justice Rehnquist to Chief Justice and the appointment of Antonin Scalia in 1986. These two appointments began a pattern where "conservative" judges were replaced with even more conservative judges, but, as damaging, "liberal" judges were replaced by more moderate judges - in other words, the Court drifted right from both sides of the spectrum.
Whereas neither President Clinton nor President Obama risked nominating "liberal" justices, both Presidents Bush had no such qualms about appointing deeply conservative (and young) lawyers to the bench. Clarence Thomas, who was confirmed by the Senate at age 43 to take the seat of liberal icon Thurgood Marshall, and has already been on the Court for 21 years, may end up serving longer than any other Justice in history. Chief Justice Roberts (age 50 at appointment) and Justice Alito (age 56 at appointment) are both likely to serve more than 25 years. Although Justice Souter was a moderate, he was still to the right of the man he replaced, William Brennan, and the Justice who replaced him, Sonia Sotomayor, is at best, at the same point on the judicial spectrum as Souter, if not a bit to his right (she was originally appointed to the federal bench by President George H.W. Bush).
The full expression of this change occurred in 2000, when a five member majority abruptly ended the Florida recount and handed the Presidency to George W. Bush. What was so offensive about that decision was not its ultimate outcome (though many, including me, think it was a perversion of justice), but rather, that the Court's decision felt anti-democratic. No single name was attached to the Court's opinion, it was issued per curium, and specifically eschewed any precedential value. Instead of erring on the side of ensuring voting rights, by, for example, dictating an expedited schedule for recounting all state ballots under a uniform standard, the Court turned due process on it head, arguing that a recount would violate the rights of those who had voted if those whose votes were not counted were somehow included under a non-uniform standard. For good measure, the court threw in specious arguments that said time had run out and that somehow the republic would be endangered if the matter was not resolved. Of course, there was still more than a month until Inauguration and, in at least one prior Presidential election (1876), the winner was not certified until two days before the Inauguration, which in those times, was in early March.
While the Bush v. Gore decision was a low point for the Court's jurisprudence, it also carried a strong odor of political shenanigans (Justice O'Connor is reported to have bemoaned Gore's apparent win early on Election Night by complaining she would have to stay on the Court for another 4 years). The gatekeeper of our electoral function had instead picked sides and the trust people placed in the Court as an institution dropped precipitously.
Unfortunately, when you subvert the foundational concept upon which our nation is founded, the message you send to others is not positive. It is unsurprising that the Bush Administration felt no qualms about instituting a torture regime and (allegedly) violating both the Geneva Convention and federal law. To read Department of Justice memos from this time period is to see an interpretation of Constitutional power that is unfettered by Congress or judicial review. From there, it is not a significant leap to engage in warrantless wiretapping of communications, demanding compliance from telecommunications companies in the production of phone records in violation of FISA, and destroying videotaped evidence of torture in contravention of the law. When lawsuits were filed, the Bush Administration got Congress to pass legislation providing retroactive immunity that excused the conduct of the telecoms. And in all of this, no one served a day in jail. While the Supreme Court may have partially redeemed itself by reaffirming the basic rights of prisoners to habeas corpus in a series of cases involving Guantanamo Bay detainees, even there, the Court's opinion was not unanimous and when it issued its instantly infamous Citizens United decision in 2010, it opened the floodgates to unregulated financial contributions by corporations that are already perverting out elections.
Which brings us to last week's oral argument on the Affordable Care Act. It is not just that Justice Scalia parroted a FOX News talking point about whether a law could mandate that people eat broccoli or that he was unaware that the so-called "Cornhusker Kickback" was not actually in the final version of the Affordable Care Act, it's that the questioning belied what appeared to be an unfamiliarity with the basic precepts of insurance, and how it operates, in favor of attempting to question why policies had to require things like substance abuse treatment or pre-natal care. Unfortunately, Solicitor General Verrilli missed obvious opportunities to rebut these questions by pointing out that many insurance policies, such as auto and home, contain clauses that many people never have to utilize, or that having health insurance be purchased at the "point of contact" is laughable on its face (as if an uninsured person riding in an ambulance would be in condition to pick a Blue Cross/Blue Shield policy).
More broadly though, questions about the individual mandate and the expansion of Medicaid suggested at least four members of the Court are prepared to significantly trim the Commerce Clause power of the government even though health care consumes one-sixth of our economy (never mind the fact that Congress has already regulated in areas of health care like ERISA and HIPAA and that even in this case, the states challenging the Affordable Care Act concede certain portions of the regulation (like health care exchanges) are within Congress's authority). Moreover, the long established right of the federal government to predicate the transfer of its dollars to states with "strings attached" (something that most would have assumed was settled in South Dakota v. Dole) was brought into question when the Court took up the ACA's provision that expands Medicaid.
The potential for the Court to overturn or meaningfully alter legal precedent is something that erodes the strength of the rule of law. A touchstone of Supreme Court jurisprudence is the idea of stare decisis, that precedents should be given deference so that decisions cannot be overturned solely because the make-up of the court changes. If the Supreme Court shows a willingness to jettison this concept, the very framework upon which federal courts interpret the law will be undermined. This is not to say that Justices, be they liberal or conservative, are not going to bring their own interpretation of the law to their opinions, however, the Supreme Court must be particularly circumspect in issuing sweeping proclamations that suggest politics, not the law, are driving their decisions or overturning long-established precedent. While decisions of lower courts have largely fallen along party lines, with judges appointed by Republican Presidents striking down either the Affordable Care Act in toto or just the individual mandate, two prominent Republican appointed judges did vote to uphold the law and disposed of the arguments in a far more straight forward way than the questioning at the Supreme Court would suggest the Justices are looking at the law.
At one time, the Supreme Court stood as a beacon for social justice, its members standing unified in favor of ending school segregation, miscegenation, and with strong majorities for the idea of a right to privacy between couples, for the concept of "one person, one vote" and for separation between church and state within the schoolhouse doors. Although President Eisenhower may have lamented his selection of Earl Warren as Chief Justice and his appointment of William Brennan as an Associate Justice, the Warren Court, its willingness to correct societal injustice and the Chief's ability to bring majorities together to ensure that there was equal justice under the law remain a touchstone of modern jurisprudence. Today, a majority of the public expects that whatever decision is made about the Affordable Care Act will be done based on politics, not law. Although our judiciary is independent precisely because it is sometimes called upon to make unpopular decisions, the modern Court is attempting to use its insularity to re-write decades of law and that is something that should be deeply troubling to all Americans.