There aren’t many things that I remember from college classes. However, I do remember taking an American Government class when the professor was covering separation of powers among the three branches.
He was peppering us with questions about the constituencies of each branch. With the executive and legislative branches, it was pretty straightforward. However, with the Supreme Court, the question was a stumper. Some students said the presidents who appointed them; some said the Judiciary Committee of the Senate that advised on confirming them; some said the American people. What this particular professor said was that the justices have two different reference groups. The first are their fellow justices. They want to be respected by other jurists on their level. The second was history. They wanted to leave a strong legacy.
Not only did the professor’s reasoning make sense, but the timing of when I was taking the class could not have been better; the late 1960s. Had it been 30 years earlier in the New Deal, I might have been somewhat skeptical of the Court because of how it had struck down various New Deal acts. The political acrimony became so great that President Franklin D. Roosevelt wanted to “pack the court;” add more justices that he would appoint and thereby ensure a consensus of jurists who would support his policies without exception.
But in the 1950s and 1960s, the Court. under the leadership of Chief Justice Earl Warren, expanded human rights, justice, and liberty. It also declared virtually all legislation from President Lyndon Johnson’s Great Society to be constitutional.
In 1954, the Court unanimously ruled in Brown v Board of Education (of Topeka) that racially “separate but equal” schools were indeed separate, but not equal. It ordered that public schools be racially desegregated “with all deliberate speed.” The Court extended liberties in other areas, such as requiring that state legislatures be apportioned based on population. In 1965, the Court ruled in a Connecticut case (Griswold) that a state could not prohibit adults from having access to contraceptives.
In the late 1960s and into the early 1970s, the Court affirmed the constitutionality of Medicare, Medicaid, and various components of the “War on Poverty.”
However, the idea of the Court being a-political and committed to legal principles of justice undermined that perception with just one case some thirty years later. When the justices decided in December, 2000 in Bush v Gore to overturn precedent on which level of government controls the electoral process, it was clear that the Rehnquist Court was basically political in nature. Five of the nine justices favored George Bush for president, and the other four favored Al Gore. The legal issues were discounted for political expediency and preference. In time, the justices as much as admitted so.
In 2010, when the Court ruled in the Citizens United case that corporations were individuals and could give unlimited amounts of money in support of a political candidate so long as it did not pass through the official campaign committee, it was clear the Court essentially supported any legislation in a way consistent with what big business wanted. The decision, which benefits Republicans, was a reflection of the views of the five justices who had been appointed to the Court by Republican presidents.
Now the Affordable Care Act is before the Court. Initial indications are that the Court is going to rule against the act. It may do so, but if it does, that means that in the course of a dozen years it will have made decisions of questionable (or at least complicated) legality all of which reflected the conservative, Republican movement. It also means that the Court will lose more of its capital – the capital that gives it respect to be viewed as honorable and non-biased.
Chief Justice John Roberts is a very wise man. Does he want to preside over a court that will be viewed with as much disdain as Congress is? This is a difficult question. However, it’s possible that irony will be a key component of how the court rules. It may be that Roberts feels that the act should be overturned, but he will vote against his convictions because he will find it essential to maintaining a suitable level of respect for the Court over which he presides.
This case has many factors at play, embedded in a 2,700 page law. When the Court rules in June, there will be the pragmatic impact of the decision. There will also be the image factor – how does the Court want to be viewed, by not only the American people but also by other justices and ultimately by history. Currently, the arguments have been heard, and we are all left with nothing to do but stay tuned. More is at stake than this one case. However the Court rules, both its decision and the regard with which it is held will dominate much of our conversation for some time.
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