Obama and the Supreme Court
As the United States Supreme Court considers the most revolutionary legislation in decades, the so-called “Obamacare” health act, the president has recently resorted to his “bully pulpit” to apparently send a message to the Supremes.
“I’d remind conservative commentators that for years what we’ve heard is ‘The biggest problem on the bench is judicial activism or a lack of judicial restraint’ – that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said. He continued: “Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.” The president went on to say that if the court overturns the 2010 Affordable Care and Prevention Act, the decision would be “unprecedented.”
The president’s political remarks reveal a striking lack of knowledge how the High Court operates. No pressure, regardless of the source, will persuade the Chief Justice and his eight colleagues to deviate from their two oaths of office, one pledging to support and defend the constitution, and the other to administer justice without respect to persons and do equal rights to the poor and the rich. The justices only rule on questions of a constitutional nature, and the health care act passed by Congress and signed by President Obama is rife with constitutional challenges.
The core of the legislation, the so-called “mandate,” poses troubling legal questions for the administration and supporters of the act. The act requires all Americans to purchase health insurance by 2014 or pay a penalty, assessed as a tax on their 1040 tax return. The obvious question that most of the justices posed to the Solicitor General and lawyers representing the administration dealt with a limit, if any, on what Congress can compel the American people to do. Where to draw the line and find whether the Health Care Act crossed it or not will be the primary challenge of the High Court in ruling on the legislation.
Columnists and observers at the court’s unprecedented six hours of oral argument about the Health Care Act have repeatedly commented about the questions the justices posed to the lawyers appearing before them. Many have drawn inferences from those questions how the individual justices will ultimately vote. That, in my view, is sheer folly. The questions invariably offer not a clue how the justices will eventually rule. In fact, history has shown that some justices ask questions that are diametrically opposite to the opinion eventually written by him or her.
The real work began long before the arguments in the form of a legion of highly skilled law clerks dissecting the voluminous act and researching the constitutional laws that might apply to it. That research will result in memoranda submitted to Chief Justice John Roberts and his colleagues on different sections of the law and issues that will be coalesced into a draft of a final version.
Not long before the summer recess, the justices will meet behind closed doors and informally discuss the case. The most junior justice must verbally announce her view first, followed by seniority and ultimately, the Chief Justice himself. On reaching a decision, and determined by the numerical vote, either John Roberts or the senior justice representing a view contrary to the minority vote will be assigned to write the official opinion of the High Court or delegate same to another member of the court. The clerks for the designated author will once again start their work, formulating drafts of an opinion their boss might approve. Not once in the history of the Supreme Court has the private agreement reached in chambers on how to rule in a particular case been leaked which speaks to the court’s integrity and professionalism. In some instances the opinion is not signed by a named justice and is labeled simply Per Curiam, or an opinion from the whole court itself.
Newspaper editorials frequently criticize the High Court for rulings, especially in high-profile criminal cases. In doing so, the print media is exercising its First Amendment right of a free press, which the court zealously protects.
Judicial activism is a two-way street and when the politics reverse, people reverse arguments.
One thing is certain: the United States Supreme Court will not respond to the president’s rhetoric or urgings in any manner. It will allow its final, landmark decision expected this summer to speak for it. There’s an old saying: The Supreme Court is not final because it’s infallible; it’s infallible because it’s final.