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The Unelected Judiciary Un-American? No Way.

Columnist: Scott Gerien
August, 2012 Issue

Scott Gerien
All articles by columnist
This spring, the U.S. Supreme Court heard arguments on the constitutionality of the Obama administration’s changes to federal health care law, which was passed in 2010. These changes have proven to be a lightning rod for both sides of the political aisle with President Obama tying the legacy of his presidency to this issue instead of economic and mortgage reform, and many Republicans characterizing the reforms as an assault on personal liberty and individual freedom. However, through the sausage maker of the legislative process, the elected officials in both parties reached an acceptable middle ground that was sufficiently palatable and reforms were passed by Congress and signed into law by the President. So the President and Congress were able create reforms they found to be acceptable, but are they legal?

Almost immediately after the health care reforms were passed, they were challenged in different federal district courts in different states by various parties. Some courts found the new laws to be unconstitutional, others didn’t. These decisions were then appealed to different federal appeals courts, some of which found the new laws to be constitutional and others which did not. So from here, with conflicts of interpretation between different federal courts, the matter was ripe to be heard by the U.S. Supreme Court, the highest court in all the land and the third branch of government composed of nine individuals responsible for balancing the decisions of the politically elected based on the U.S. Constitution.

The current Supreme Court is more diverse than any prior Court: six men and three women; one African-American and one Latina; six Catholics and three Jews. The justices were appointed by five different presidents (five by Republicans and four by Democrats). Thus, this Supreme Court is probably more balanced, from a political and ethnic perspective, than any predecessor.

Given the political battle over the health care reforms, it wasn’t surprising that the oral argument over the constitutional challenge drew center stage in the public spotlight. Media-retained “legal experts,” much like Terry, Howie and Jimmy on “NFL on Fox,” provided analysis and opinion as to the performance of the litigators and the meanings and interpretations concerning the questions asked by the justices. Like Vegas bookies, others attempted to handicap the court’s decision and predict the split of opinion.

Such spectacle is eschewed by the Supreme Court, which maintains rigorous rules forbidding any video or audio taping of hearings by the media. Justices rarely give media interviews and almost never comment on opinions while still on the bench. All of this is done to avoid outside influence on the judicial process and the politicization of judicial decisions.

For many years, politicians (mostly Republicans) have complained of “activist judges” who overturn laws written by elected officials who represent the views of the electorate. However, in what appears to have been a failed attempt to turn the idea of “activist judges” back on Republicans for his own political advantage, President Obama, following the oral argument on health care reform, publicly warned that a rejection of the law would be an “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress” by “unelected judges.”

Following all of this media attention and political criticism surrounding the Supreme Court’s consideration of the constitutionality of health care reform, CBS and The New York Times conducted a poll that found 60 percent of Americans believe lifetime appointments to the Supreme Court are bad because they give justices too much power, while only 33 percent said such appointments are a good thing because they keep the justices independent. Thus, this poll suggests Americans believe Supreme Court justices should be held politically accountable for their decisions, much in the same way as members of Congress.

According to a 2010 study published in The Georgetown Law Journal, “Supreme Court justices care more about the views of academics, journalists and other elites than they do about public opinion.” The study further found that “this is true of nearly all justices and is especially true of swing justices, who often cast the critical votes in the court’s most visible decisions.”

So is this wrong? Should the Supreme Court care about public opinion and let it color its decisions? Almost always, I believe the answer would be no. Certainly, particular portions of the Constitution lend themselves to consideration of public opinion. For instance, what may be considered obscene and unlawful despite the free speech protections of the First Amendment will change over time based on public opinion. Thus, public opinion is a relevant factual consideration in interpreting the legality of a particular law or its enforcement.

However, when the Supreme Court is deciding basic issues of constitutionality and interpretation of law, it shouldn’t matter that the law at issue was passed by a democratically elected legislature, as that is true of most laws. The very purpose of the judicial branch of government is to ensure the will of the majority as reflected in the executive and legislature doesn’t trample on the protected rights of all, including the minority. Many Americans would endorse laws forbidding the burning of an American flag, but this is protected speech, and to allow such speech to be trampled simply because it’s offensive and not obscene would also allow basic rights to be exposed to value judgments, which isn’t what’s intended by the Constitution.

By the time this column is published, the Supreme Court will have decided the health care reform cases, and whether or not I agree with the decision, I do know the decision will be well reasoned and supported by the law, not influenced by which special interest groups spent the most money to buy votes. The stability of the United States and its ability to avoid major internal chaos resulting from politically charged legislation and abuse of power is ensured by the nine unelected jurists who sit on the Supreme Court. And while it certainly may seem elitist, the public shouldn’t have any input on the tenure of members of the Supreme Court. Leave that theater to the President and the Congress; leave the Supreme Court to deal with the truly weighty matters.


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