Law in the Raw: Live from the Roasterie
I do not know whether to laugh or cry at the fact that Linda Greenhouse says that for decades she has been struggling to maintain the belief that "the Supreme Court really is a court and not just a collection of politicians in robes". The Supreme Court has always--or at least since in Marbury vs. Madison it seized the power of judicial review--been both a court and a collection of politicians in robes. There are few things in our political system more fundamental than that we have a common-law Supreme Court that, when the chips are down, delineates and changes what the law is in oracular pronouncements from the bench--not final because it is infallible, but infallible because it is final.
The curious thing about the Rehnquist-Roberts Supreme Courts is that, historically, the Supreme Court has deployed its low-transforming power in the interest of overwhelmingly-felt principles of justice: it says that "we do not care what the law has been, here is what justice tells us the law ought to be". Bush v. Gore, Citizens United, NFIB v. Sibelius, and now King appear very different--they are, rather, naked pursuit of partisan advantage.
I can think of no parallels, safe perhaps Federalist Chief Justice John Marshall's acquittal of Aaron Burr in the hope that if Aaron Burr were set free he might cause Democratic-Republican President Thomas Jefferson additional trouble...
...‘This is Bush v. Gore all over again,’ one friend said as we struggled to absorb the news last Friday afternoon. ‘No,’ I replied. ‘It’s worse.’... The inconclusive aftermath of the 2000 presidential election... gave rise to a plausible argument that someone had better do something soon.... True, a federal statute on the books defined the ‘someone’ as Congress, but the Bush forces got to the Supreme Court first.... I disagreed with the decision and considered the contorted way the majority deployed the Constitution’s equal-protection guarantee to be ludicrous. But in the years since, I’ve often felt like the last progressive willing to defend the court for getting involved when it did.
That’s not the case here... no urgency... no crisis of governance... rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together.... The case... doesn’t fit the normal criterion for Supreme Court review.... This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle.... There is simply no way to describe what the court did last Friday as a neutral act.
Now that the justices have blown their own cover, I notice the hint of a slightly defensive tone creeping into the commentary of some of those who have been cheering the prospect of rendering the Affordable Care Act unworkable: that as a statutory case, without major constitutional implications, any problems for ordinary Americans that result from a ruling against the government can be fixed by Congress... or by the states.... Sure....
The 1984 decision that established this deference principle, Chevron U.S.A. v. Natural Resources Defense Council, Inc., is so central to the modern understanding of how the government works that it is among the most often invoked Supreme Court decisions of all time, cited in some 13,000 judicial decisions so far, a number that grows at the rate of about 1,000 a year. The tax provisions of the Affordable Care Act fall so naturally onto the ‘Chevron deference’ landscape that it would take an agenda-driven act of judicial will to keep them out and to conclude that Congress enacted a law that contained the seeds of its own destruction....
It takes the votes of four of the nine justices to accept a case. Certainly Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. — the four who two years ago would have invalidated not only the individual mandate but the entire law — voted to hear King v. Burwell.... An intriguing question is whether there was a fifth vote as well, from the chief justice. I have no idea, although I can’t imagine why he would think that taking this case was either in the court’s interest or in his own....
Here’s another possible scenario, just a theory: that the four, still steaming over what the right wing regards as the chief justice’s betrayal two years ago, voted to hear King v. Burwell not only for its destructive potential, but precisely to put the heat on John Roberts....
Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.
