Who’s Really Supreme?

“There are indeed activist, ambitious and imperialistic judiciaries but whatever Obama intimates and the New York Times attempts to argue, John Robert’s present Supreme Court is not one of them.”

Dispatches US Politics
Judicial v. executive branches: Chief Justice John Roberts watches President Obama sign the guest book of the Supreme Court (Credit: Gage Skidmore)

The suspension of Rick Santorum’s campaign for the Republican presidential nomination was a sensible move, both for the GOP and himself. He will be 58 when he runs again in 2016; or, if Romney wins the presidency this year and therefore is unopposed in 2016, Santorum will only be 62 should he run in 2020. (The reason why candidates such as Santorum, Herman Cain and Rick Perry “suspend” rather than “end” their campaigns is a legal/financial one to do with the paying-off of campaign debts with contributions, but in effect a suspension equals a termination.) 

Mitt Romney is therefore going to be the Republican nominee, barring anything short of assassination, although it will be interesting to see how many diehard conservatives so dislike him that they ignore party unity and remain voting for Newt Gingrich, whose campaign continues despite its having bounced a $500 cheque recently. Gingrich’s erratic pronouncements — including the demand that the United Nations should campaign for the right to bear arms as “a human right for every person on the planet” — add to the jollity of American politics, but do not affect Romney’s now leisurely amble to the nominating convention in Tampa, Florida, in August.  

Yet it was not to Romney, Santorum or Gingrich that politically-minded Americans have been turning their minds in recent weeks, so much as to the real possibility that President Obama’s signature political initiative of his first term — the Patient Protection and Affordable Care Act (or “Obamacare”) — might be struck down as unconstitutional by the Supreme Court. Over three days in late March, the court heard the Solicitor-General, Donald B. Verrilli Jr, argue that Obamacare, and in particular its “individual mandate” that requires most Americans to acquire health insurance or pay a penalty, did not violate the Constitution. The six men and three women in black robes seemed unconvinced. By the end of Verrilli’s cross-questioning by conservative justices such as Antonin Scalia and Samuel Alito, the online prediction market Intrade had raised its odds on Obamacare’s rejection from 33 per cent to over 60 per cent. An announcement is not expected until June, but the court has already made its decision in camera. 

It is sometimes hard for non-Americans to appreciate just how powerful the Supreme Court is. The idea that Obama’s most important law might simply be struck down by a 5 to 4 decision, despite having been explicitly campaigned on in the 2008 election and passed by both houses of the legislature, surprises those of us who come from countries without written constitutions. Yet such a thing happens regularly in America, a country founded on a revolutionary document rather than evolving from a post-feudal monarchy.

The Supreme Court rightly sees itself as the people’s guardian against the legislature making unconstitutional laws. Thus, in the open hearing on Capitol Hill that was followed intently by millions of Americans, Scalia asked Verrilli of the individual mandate: “What is left? If the government can do this, what can it not do?” Alito later asked: “Could you express your limiting principle as succinctly as you possibly can?” Verrilli floundered over this line of questioning, and also came up sharply against the lawyers opposing Obamacare who invoked the Federalist Papers and the expressed beliefs on limited government of the framers of the Constitution. Even the ultra-liberal New Yorker magazine admitted: “It’s well known that Verrilli had an off-day.” For a British solicitor-general in similar circumstances it might have been possible airily to have belittled the 200-year-old views of a bunch of Virginian slaveowners — but not in America. 

So Obama himself had to step in, telling a news conference almost as soon as the hearings were over that he was “confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed   by a strong majority of a democratically-elected Congress”. In fact the step would be far from unprecedented, as the former president of the Harvard Law Review must know, for in the two centuries since the doctrine of judicial review was established by the landmark 1803 case of Marbury v. Madison, the Supreme Court has struck down all or part of scores of laws passed by both Congress and the states. Furthermore, far from enjoying “a strong majority”, Obamacare passed by 219 votes to 212 in the House and the bare minimum number of votes — 60 — to prevent a filibuster in the Senate. 

The bluster of Obama’s press conference last month was designed to pressurise the five conservative judges on the bench, but also to frame a People v. Court angle for the coming election if they do indeed strike down Obamacare. Will it succeed? One thing that was almost unprecedented was for the President to comment at all on a decision before it had been made. Even Thomas Jefferson’s fulminations against the Marshall court and Franklin Roosevelt’s against the Hughes court took place behind the scenes before the decision was taken and in public afterwards, rather than publicly beforehand. 

Although Obama’s intervention is unlikely to raise so much as an eyebrow of Justices John Roberts, Clarence Thomas or Anthony Kennedy, let alone Alito or Scalia, it has raised an issue the President might not have wanted placed so prominently in the election campaign. For as Mitt Romney told a rally of the National Rifle Association on April 13: “In his first term we’ve seen the President try to browbeat the Supreme Court. In his second term, he would remake it.” No fewer than four justices are in their seventies — Scalia is 76, for example — and so it is likely that a re-elected Obama would be able to reverse the 5 to 4 conservative majority on the bench, with profound implications for American politics, possibly lasting for many years after he left the White House. 

The outline of a People v. Court election cry is already obvious. Obama would cite the court’s sealing of George W. Bush’s 2000 election after the hanging-chads imbroglio, its decision allowing unlimited corporate contributions, and then its striking down of Obamacare, as proof that it needed more liberals on the bench. The President already broke decisively with Washington decorum when he denounced the Supreme Court justices to their faces during his 2010 State of the Union address. “The Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” he said on that occasion. For all that Alito mouthed the words “Not true,” the mud stuck, and was not even removed when Obama himself agreed to take legally unlimited cash from the very super-PACs that he had criticised.

What is unlikely to impress anyone, however, is Obama’s bleating about the Supreme Court’s “judicial activism”, a phenomenon he was very happy to endorse when it went in liberals’ favour, as it did almost throughout the 1960s, for example. As Senator Orrin Hatch of Utah put it after Obama’s press conference: “It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don’t is ‘activist’.” There are indeed what Judge Robert Bork described in his book Coercing Virtue as “activist, ambitious, and imperialistic judiciaries”, but whatever the New York Times attempts to argue in its editorials, John Roberts’s present Supreme Court is not one of them.

Genuine judicial activism was evident in American jurisprudence since Marbury v. Madison challenged the Jefferson Administration over patronage appointments. Chief Justice Roger B. Taney’s court changed the meaning of the phrase “due process of law” in the 1857 Dred Scott v. Sandford case, thereby massively extending the powers of the court. The Lockner v. New York case in 1905 created a “liberty of contract” concept that was not found anywhere in the Constitution, which made limitations on hours of work unreasonable. Much of FDR’s New Deal legislation was initially struck down by Charles Evans Hughes’s court. To quote Bork again: “Activist judges are those who decide cases in ways that have no plausible connection to the law they purport to be applying or who stretch or even contradict the meaning of that law. They arrive at results by announcing principles that were never contemplated by those who wrote and voted for the law.”

The most significant moment of post-war judicial activism came, of course, in 1954 with Brown v. Board of Education, when the Supreme Court ordered the desegregation of public schools on the basis of the Fourteenth Amendment. Now, because that decision turned out to be the courageous, prescient and morally correct one, judicial activism was given a good name that it went on not fully to deserve in other cases and at other times. In the 1960s and 1970s, the court actively sought out cases regarding affirmative action, civil rights, abortion and the church-state separation in order to change American society, often leap-frogging public opinion. As the great Professor Alan Dershowitz of Harvard says of judicial activism: “It depends on whose ox is being gored.”