“Not A Chance”: Does The Supreme Court Care A Whit About The Public’s Opinion Of The Obamacare Ruling?
As we edge closer to this month’s Supreme Court decision on the future of the Affordable Care Act—or lack of any such future—many liberal pundits are pinning their hopes for a happy ending on Chief Justice John Roberts voting to uphold the law in response to the court’s poor showing in recent polls on the issue of the court’s political objectivity.
Nonsense.
Of the many concerns that fall to a Chief Justice—whose name will forever attach to the decisions of the court over which he or she presides—public polls would have to be at the very lowest rung on the list.
A recent New York Times/CBS News poll reveals that public support for SCOTUS is at just 44 percent, with 76 percent believing that the justices, at least some of the time, base their rulings on their personal and political views.
This rather dismal opinion of our one government institution— that is supposed to be high above petty political concerns—prompted former Clinton Labor Secretary, Robert Reich, to write in the Christian Science Monitor –
The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs. If he does, he’ll do whatever he can to avoid another 5-4 split on the upcoming decision over the constitutionality of the Obama healthcare law.
My guess is he’ll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law’s constitutionality, relying primarily on an opinion by Judge Laurence Silberman of the Court of Appeals for the District of Columbia – a Republican appointee with impeccable conservative credentials, who found the law to be constitutional.
While I would love to believe that Reich has this right, I’m afraid the Secretary is engaging in some very wishful thinking. It’s just not going to happen that way.
This is not to say that the Chief Justice may not, ultimately, find the law to be constitutional.
I have previously suggested that writing off Robert’s vote in support would be a mistake— in no small measure because of his high regard for the opinions of Judge Silberman who did, as Reich reports, vote to uphold Obamacare in the DC Court of Appeals and did so in a highly compelling opinion that cannot be ignored.
Silberman is a major legal influence on conservative judges throughout the nation and, in my opinion, the most likely next appointee to the Supreme Court should a Republican president make the choice.
At the very least, it is reasonable to expect that Justice Roberts might be far more open to considering the less comfortable approach to the law than he might otherwise have been had Judge Silberman seen things differently. In the end, Judge Silberman’s well thought out opinion may turn out to be the difference between Obamacare surviving or not.
But will the Chief Justice ‘tilt’ his vote in a scheme designed to protect the status of the court in the public’s perception?
Not a chance.
If Roberts concludes that the law should be upheld, he may go after Justice Kennedy’s vote, as Secretary Reich suggests, but he would do so with the understanding that on issues as important as the healthcare decision, a 5-4 vote would leave the issue settled—but in a highly unsettling way. When it comes to critical rulings, any Chief Justice greatly prefers that the decision not be carried by a tie-breaker vote as it forever remains more suspect than a 6-3 determination.
We should also keep in mind that The Roberts Court is far from the first controversial Supreme Court in our history. Nor is the current crop of justices the first to experience a bumpy road when it comes to public opinion. We need only recall the huge public outcries engendered by the Warren Court—a version of the Supreme Court which upended the legal status quo in this country in ways never previously seen, enraging many Americans in the process.
Chief Justice Roberts may vote to uphold the Affordable Care Act—including the controversial mandate provisions. I certainly hope that this is the case. And should things go this way, there is no doubt that Roberts’ opinion will go a long way to encourage confidence in our Chief Justice who, by voting to uphold, would reveal himself as a man committed to correctly interpreting the law—even when it may be in opposition to what we suspect might be the dictates of his personal belief.
But if the Chief Justice does this, it will not be the result of some PR effort to raise the level of esteem for the Court among the American public—it will be because he will have correctly understood that, like the law or not, the Affordable Care Act passes Constitutional muster.
By: Rick Ungar, Forbes, June 17, 2012
The Affordable Care Act And The Text Of The Constitution: Words Still Matter, Even in the Supreme Court
The most powerful line in conservative Judge Laurence Silberman’s decision upholding the Affordable Care Act last week is a blunt statement that the law’s opponents “cannot find real support” for their arguments “in either the text of the Constitution or Supreme Court precedent.”
Now that the Supreme Court has agreed to take up this case later this year, Silberman’s words are a stern reminder that the text of the Constitution must guide judges’ decisions, especially in politically charged cases, and that Silberman’s fellow conservatives on the Supreme Court must ignore the temptation to place politics over fidelity to the Constitution by striking down the Affordable Care Act.
There can be no question that Silberman is right about what the Constitution has to say about this law. The federal government’s power is not unlimited—the Constitution gives Congress a laundry list of “enumerated powers,” and Congress cannot stray beyond this list—but its authority is quite sweeping when it regulates nationwide commercial markets such as the market for health care services. In the Constitution’s words, Congress may “regulate commerce . . . among the several states.”
The plaintiffs’ primary challenge to the Affordable Care Act is to the provision requiring most Americans to either carry health insurance or pay slightly more income taxes. In their vision of the Constitution, this provision runs afoul of some unwritten rule against being told what to do. The federal government can regulate how people go about the business they are already engaged in, under this narrow vision, but it is utterly powerless to push people to engage in commerce they would prefer to avoid.
There are many, many problems with this theory of the Constitution. But Silberman’s rebuttal of it is both the most simple and the most elegant response to the plaintiffs’ entirely fabricated legal theory. The Constitution says nothing suggesting that people can immunize themselves from the law simply by remaining passive. It simply provides that the United States may regulate commerce among the several states.
Modern judges do not need to speculate what the founding generation understood these words to mean when they were written into the text of the Constitution. Chief Justice John Marshall—himself one of the ratifiers of the Constitution—told us what they mean in the 1824 case of Gibbons v. Ogden. Marshall wrote that there is “no sort of trade” that the words “regulate Commerce” do not apply to. He said that the power to “regulate” something “implies in its nature full power over the thing to be regulated.” And he told us that Congress’s power to regulate commerce “among the several states” applies to all trade that “concern[s] more states than one.”
So when Congress passes a nationwide law regulating the entire national health care market, there is simply no question that the law is constitutional. The law regulates a form of trade—trade for health services—and it regulates a health services market that is both pervasive and nationwide. The Affordable Care Act cases are some of the easiest cases to cross the Supreme Court’s bench in a generation, and it is nothing less than shocking that a handful of judges have struck the law down.
Thankfully, the overwhelming majority of judges to review the law have upheld it. Of the four federal appeals courts to consider the Affordable Care Act, only one voted to strike it. That one outlier decision was grounded on a false fear that if the courts were to uphold health reform, it would somehow eliminate all of the existing limits on congressional authority. If Congress is allowed to regulate health care today, the law’s opponents argue, tomorrow they will force everyone to buy broccoli.
Make no mistake: This concern is misguided, and it has no basis in the Supreme Court’s precedents. In its 1995 decision in United States v. Lopez, the Supreme Court explained that the power to regulate “commerce” includes sweeping authority over the nation’s economy, but Congress’s authority over noneconomic matters is far more limited. Thus a wide range of noneconomic regulation—including federal laws governing personal and sexual morality or even a federal ban on assault, rape, or murder—clearly exceed Congress’s enumerated powers. Sweeping regulation of the national health care market, by contrast, fits comfortably within the Constitution’s text.
Because the text of the Constitution clearly and obviously supports the Affordable Care Act, the Supreme Court has an unambiguous duty to uphold it. Judges are not like members of Congress. They are unelected, and they serve for life. As such, they cannot be held accountable to the people through fear of a lost election and can only be checked by their loyalty to our written Constitution. If the federal judiciary has the power to ignore the text of the Constitution then there is literally nothing that they cannot do.
Indeed, if the justices strike down the Affordable Care Act, there is nothing preventing them from forcing every American to buy broccoli.
By: Ian Millhiser, Center For American Progress, November 14, 2011
Making The Court A Priority For Progressives
This week the U.S. Supreme Court opened a new term, for the first time in Barack Obama’s presidency without a new Justice joining the high court. Also this week, two of the Justices testified before Congress in an historic hearing on the role of judges under the U.S. Constitution. A new national conversation about the third branch and the Constitution is gaining the attention of more Americans every day, and it’s one all of us should join.
History shows that nearly every major political issue ends up in the courts. Our nation’s federal courts are where social security appeals are heard, employment cases decided, immigration issues settled, and where Americans vindicate their most cherished Constitutional rights. This year is no different.
This Supreme Court term, lasting through June 2012, promises to be a significant one, with decisions affecting every American. The cases the court will decide this term alone highlight what’s really at stake for all Americans, far beyond any single election or individual term in office.
Consider these important questions the Court is poised to decide: the constitutionality of the Obama Administration’s landmark health care reform legislation; the constitutionality of warrantless surveillance of Americans using GPS tracking devices; the constitutionality of Arizona’s controversial racial profiling immigration law; questions relating to the Family and Medical Leave Act; the constitutionality of religious organizations discriminating in hiring decisions; constitutional questions about the reliability of eyewitness testimony in criminal cases (a key issue in the recent Georgia execution of Troy Davis).
This is a veritable hit parade of issues progressives, independents—indeed all Americans—care deeply about.
Until recently, the courts were generally friendly to progressive public policies. Indeed the federal courts helped to enable the social and economic progress that has made our country stronger and more inclusive over time. Courts were able to do so by adhering to the text and history of the U.S. Constitution and its amendments, and applying the Constitution’s core principles and values to questions of the day.
Conservatives, unhappy with idea that the Constitution guarantees more opportunity all our citizens instead of just for the already privileged few, have in recent years mounted a concerted political effort to remake the federal judiciary in their image: to be more activist and more closely aligned with their political views. Americans used to be able to sleep at night knowing the federal courts were good guardians of our most cherished constitutional principles. Now, the rights many Americans take for granted, like equal access at the voting booth and the ability to challenge discrimination at work, increasingly find a hostile and activist audience in the nation’s courts.
But progressives have a chance to turn the tide. Today, there are a record number of vacancies in our federal courtrooms, as a new Center for American Progress study released this week shows. Unprecedented obstruction by conservative U.S. Senators has led to an abysmal rate of judicial confirmations. This has left a level of empty judgeships not seen at any time under any president in U.S. history. Fully two thirds of the country is living in a jurisdiction without enough judges for the cases that are piling up. It means less access to justice and longer delays in court for the American worker and small business owner.
It doesn’t have to be this way. Progressives need to work together to support making our judiciary more progressive—and to support the confirmation of President Obama’s nominees. It’s time for the judiciary to be a priority for progressives.
The judges progressives want on the bench are judges for all Americans—judges who follow the text and history of the Constitution and apply it faithfully to the questions before them. At a time when the Tea Party is cherry-picking select provisions of the Constitution and discarding others to win short-term political arguments, we need the federal judiciary to be a strong guardian of all of our Constitution’s provisions and amendments for the long-term. With increasingly conservative state legislatures rolling back gains progressives have championed for decades, we need our courts to protect our Constitutional values from the political winds of the moment. These values—liberty, freedom, equality—have driven America’s progress since its founding, and are what make America exceptional around the world today.
Our courts matter for all Americans. And who is on the courts should matter to anyone who cares about the Constitution and the opportunities and protections it promises. It’s time for progressives to unite and support getting more progressive judges on the federal bench. Nothing less than the long term health of our democracy depends on it.
By: Andrew Blotky, Center for American Progress, Originally Published in Huffington Post, October 20, 2011
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