Judging the United States Supreme Court

The United States Supreme Court, the highest c...

The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg.

Does it feel like the United States Supreme Court is becoming less and less relevant?  If you hold the quaint view that the court possesses the power of “judicial review” and that it exists to ensure an objective application of the United States Constitution as the supreme “law of the land”, well perhaps irrelevancy isn’t the right word.  The idea the justices are objective defenders of the law seems less than quaint, seems less than relevant.

My understanding of the law and my recollection of American history isn’t as sharp as it should be so I consulted the Constitution — specifically Article III — for some guidance.  Not much there.

I do recall history lessons describing the court’s trend toward favoring broader government powers, especially judicial powers, during Franklin Roosevelt’s presidency so I looked there for some background.  Got confused.

And don’t even think of looking for historical “facts” regarding the court’s proper purpose today.  Facts, you see, no longer exist in political discourse.  Hard to find in school, too.

So I will trust my gut, open today’s newspapers, and tell you what I think.

First off, it is indeed the case that about half of the court rulings are decided unanimously and less than 1-in-5 cases fall to a 5-4 decision.  But that alone does not excuse the politicization of the court, and if the court mirrors our nation’s political divide is it a relevant tool of judicial review?

Unfortunately the court does seem overly political.  Beginning with the process of nominating and confirming judicial appointments the politics of judicial review comes into full view.  Less in full view is the hiring of clerks and aids, frequently assigned as political favors, that work behind the scenes with the court’s justices.

Opposing Affordable Health Care Act. Relevant?

Perhaps most plainly visible and so common it occurs without much comment is how the court politicians, the media, and anyone else paying attention discusses the court.

It is taken for granted that the Court has its liberal and conservative wings.  The politics of Senate and Presidential elections often include discussion of court appointments.  If we have an objective law — the Constitution — and people appointed to defend it objectively, then should politics be an overt issue in a matter before the Supreme Court?

It’s a bunch of humbug.

Is there a more political issue in this country today that the Affordable Health Care for America Act?   Not at the moment.  Conservatives question the constitutionality of the Act and have taken the issue to the Supreme Court.  Let’s look at how the court handles this.

If we were looking for an objective interpretation of law we would expect objective constitutional debate, would we not?

Chief Justice John Roberts challenged the government solicitor by asking if we mandate purchasing insurance today, what will be next?  I don’t see how this is a question of Constitutional power.  Whether or not government might or might not mandate the purchase of some other good or service hardly answers the question of whether it is Constitutional to do so.

Antonin Scalia mocked the idea that health care insurance should be mandated because health care is a universal need.  He pointed out that eating is a universal need, so shouldn’t the government mandate the consumption of broccoli if it can mandate the purchase of health insurance?


Maybe Scalia is attempting some form of modal logic I don’t understand, but seems irrelevant on the face of it.  The point doesn’t deserve serious argument, but if we were to take Scalia seriously — and it is a disgrace that we ever should — we can point out that the government, under pressure from conservatives and the insurance industry, has not written a law mandating what kind of insurance a person should by or from whom, but that they maintain insurance coverage that meets different needs.  There is no mandatory “broccoli” in the Affordable Health Care Act.

Moreover, we don’t have a problem with people eating to stay alive, but we do have a problem with people not paying for insurance — whether by choice or otherwise — that creates a hardship on the health and economy of America overall.

We already do have laws that require compliance with good economic and health practices, although those are being chipped away.  We have clean air and water laws, for example.  Regardless of whether I choose to drink clean water, I pay for it through my taxes as a citizen…don’t I?

I also pay for Wall Street bailouts.  And sports franchises for billionaires.


And then back to Chief Justice Roberts again.  He asked why people should be required to insure services they would never need like pediatric and maternity care.

I’m just going to talk common sense here and not pretend to have a legal argument.  (Broccoli anyone?)   I might not ever need the police to arrest an intruder or the fire department to save my house, but I pay for it.  Gladly, by the way, because a society without law and fire protection would be pretty horrible.  (cf. Mogadishu) We are all better off with a community force to police our laws and keep our cities from burning down.  Correct?

Likewise, we would all be better off with a healthy, more cost-effective form of health insurance, unless your someone like UnitedHealth Group CEO William McGuire.


Plus…we’re paying for maternity care and pediatrics anyway.  The high cost of health care is driven in part by the uninsured.  This affects everyone.

The rising cost of health care is a vicious and stupid cycle.  People cannot afford health care and they go without it.  They have no choice.  They cannot afford it.  It is a tautology in this country.  You cannot afford private health care, you don’t get private health care.

So the uninsured take advantage of more costly options, primarily emergency rooms or inadequate clinics which ultimately end up in emergency rooms.  The other option is to die, and judging by the response to questions at recent GOP debates, there are some sick Americans who literally applaud this solution.

Aren’t we better than that?  Seriously.  Does anyone think it should be a point of national pride that we cannot find the political will to provide universal health care to our citizens?  The Affordable Health Care for America Act doesn’t even go that far.

We are not world leaders in many issues so let’s not pretend to be.  As long as we fight to be less than average we should back up and ask ourselves how well our political system really does work for us.  That should include a review of the political United States Supreme Court.



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