"...it would be folly to predict what the court will conclude..."
-New York Times, March 31.
Welcome to Supreme Court follies.
It is Saturday morning which means that the members of the court met yesterday to take a "preliminary vote" on the constitutionality of Obamacare and (prediction) voted it down, probably 5-4.
There was, and is, a great debate in America
Oh, there is some tinny sound to this, certainly. Most Americans, and I, hear it too. Laws, plural, are made by politicians; they are the product of overtly, unabashedly, often messy-looking political work and judges, who are registered voting Republicans or Democrats and sometimes were elected politicians before their "ascent," are in some meaningful way not political? Oh yes, we hear it too. That discordant noise is merely a part of the larger symphony from above. On the whole, we like the sound.
We like the sound of “all are equal under the law” and “the law is above all.” Those familiar maxims of verticality put the law, singular, "up" and politics "down." Judges "up," politicians "down." The Constitution is the uppidiest "up" there is. All are under that Law. We want the Constitution protected, we don’t want it pulled down from on high, and we will swallow our democratic principles to do it. We want Supreme Court justices to protect the Constitution and we will protect the justices to accomplish that. And so lifetime appointments. We will protect Supreme Court justices from us.
Just do not act politically on the bench.
In return for this protection from us political animals we ask Supreme Court justices to refrain from politics. Obviously no campaigning or endorsing; aside from voting we ask Supreme Court justices to keep their political opinions to themselves. We agree not to ask, they agree not to tell. That’s easy. We also ask them to keep their political views out of their decisions: “apply the Law” is another American bromide. “Apply the Law,” do not change it. That’s hard sometimes.
It is impossible sometimes. When we political animals enact “a” law that conflicts with “the” law, the Constitution, we charge Supreme Court justices to smite it, and us, down. We hope that doesn’t happen often since he who is smitten sometimes wants to smite back and we agree to protect Supreme Court justices, not smite them. So we ask Supreme Court justices not to do that very often. And they don’t. They are above us in this elevated position because we put them there. They're vulnerable to a long, hard fall.
Supreme Court justices understand that it is a long, hard fall and so they have, enacted, of their own, certain limitations on their own behavior. Like this:
''It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.''*
And this:
“The Court developed, for its own governance in the cases within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.
3. The Court will not formulate a rule of constitutional law broader than required by the precise facts it applies to.
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of… If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” **
Now I ask you, are these not wise rules to distance the Court from politics and vice versa? Are these not sentiments of comity between co-equal branches of government? They are.
Is this?:
"Mr. Clement, I didn't take the time to figure this out, but maybe you did. Is
there any chance at all that 26 States opposing it have Republican
governors and all of the states supporting it have Democratic governors? Is that
governors and all of the states supporting it have Democratic governors? Is that
possible?"
*Ogden v. Saunders, 25 U.S.
**Ashwander v. Tennessee Valley Authority 297 U.S. 288, 346-9 (1936) (Brandeis concurring) (citing cases).
