It’s not just jobs and the economy—it’s time to think of the approaching election in terms of the future of the Supreme Court.
Our two preceding articles focused on threats to our traditional balance-of-power structure put in place by the Founding Fathers—the executive, the legislative and the judiciary branches, each with their unique functions and prerogatives. All through our nation’s history, there has been an unceasing jostling for power with strong individuals or groups of individuals, at various times, exerting extraordinary influence and thus affecting the governance of our nation.
Now, in the light of the Court’s recent decision on the controversial Affordable Care Act, powers are in play that will dramatically affect the course of our nation for many years to come.
Legal commentators have universally hailed John Roberts’ deciding vote on the 5 to 4 decision as a brilliant stroke—defending his court from accusations of partisanship from the liberals while, at the same time, handing the conservatives a victory that will yield long-term consequences in the limitation of federal powers.
Listen to a conservative: “We won,” said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. “All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird.”
The liberals, headed by the Obama administration, find themselves in a position that is less clear. Sure, “Obamacare,” the centerpiece legislation of the Obama presidency, survived, but it emerged from the Roberts’ court branded as a tax, giving its enemies a strong weapon to use against it from now to the election. In one stroke, Roberts transformed the issue from a judicial one into a political one. Erick Erickson, conservative blogger, expressed the result in stark terms: “In forcing us to deal with this politically, the Democrats are going to have a hard time running to November claiming the American people need to vote for them to preserve Obamacare. It remains deeply, deeply unpopular with the American people. If they want to make a vote for them—a vote for keeping a massive tax increase—let them try.”
Pondering the deeper implications of this decision whose many permutations remain to be worked out, it is impossible to avoid the thought that this decision is what a poisoned apple was to the Snow White character—a tempting, wholesome-appearing treat that in reality contained a deadly poison.
Looking back, the 2010 decision on Citizens United is a standout example of another 5 to 4 decision that has altered the political landscape in a troubling manner. In this instance, Justice Kennedy played his accustomed role of “decider,” writing the majority opinion giving corporations equal rights with individuals in the arena of political speech. In the simplest terms, corporations are people; money is speech. We are seeing the results, and it is daunting.
Another notable intrusion of the Court into the political scene is, of course, the example of Bush v. Gore during the contested 2000 presidential election. The word “disgraceful” continues to be attached to this example of judicial behavior, which has fed countless debates on the proper role of the high Court. Added to a nearly uninterrupted string of 5 to 4 decisions, it gives rise to questions about the partisan nature of so many recent decisions on matters of importance to the American people.
In making our decision for a presidential candidate this November, we should consider that during the next president’s term of office three Supreme Court justices will be entering their eighties—liberal Ruth Bader Ginsburg, conservative Antonin Scalia, and swing vote Anthony Kennedy. Supreme Court justices, selected by the president and confirmed by the Senate, serve for life, stepping down only at their own discretion. Thus the next president will conceivably be able to profoundly influence the composition of the Court—and the nation—for many years to come.
This situation is not lost on those who watch the political scene. Erick Erickson observes, “It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.”
Some of us hope that Erickson is wrong. There is so much at stake, and as long as I have a vote, I’ll use it to support a truly representative democracy.
Ignorance is a choice: Money is power—Knowledge is more powerful.
What can you do—you are only one person? True, but you are only “six degrees of separation,” on average, from any other person on Earth. You become powerful when you share information with your friends and ask them to share it with their friends—it becomes a global revolution. As Stephen King suggests in The Long Walk, when these “society-supported sociopaths” come, step aside, and find the strength to run…