We now know what the Supreme Court has to say in the second-most controversial case of the Term, the Arizona immigration act case. Now the nation—especially Washington journalists, political strategists, talking heads, and bloggers—waits with bated breath for the announcement of the Court’s decision in the Affordable Care Act case.
Amid the hyperventilation, and accusations that the Court’s actions are politically determined, it is worth considering something I was taught as a first year law student—that the decisions of judges are based on legal rules, and that their opinions are substantiated by legal reasoning. The Justices over the last months have grappled in their chambers (and probably in their sleep) with questions of constitutional principles, not the questions of who appointed them, or who the next president will be. In the case of the Arizona immigration law, it was the constitutional doctrine of pre-emption—that is, how far the states (or administrative agencies) can go in legislating and enforcing in the face of a federal statute or federal power. Pre-emption can be express—Congress says that it is running the board on an issue—or it can be implied, either because the entire field is properly governed by federal law (think foreign policy and national defense), or because for a particular legislative regimen to work there can only be one rule for the nation, not fifty. Writing for a 5-3 majority (Justice Kagan was recused because she was President Obama’s solicitor general when the administration decided to challenge the law), Justice Kennedy found that the federal immigration law system excluded even efforts at what was claimed by the state of Arizona to be complementary enforcement of federal immigration law. And it is worth noting that, had Justice Kagan participated in the case, she would likely have joined the Kennedy opinion at least in part, making for a 6-3 (instead of a dreaded 5-4) majority.
Next up is the Affordable Care Act, and, for anyone who has been living off the grid these last few months, the question centers on the limits of the Commerce Clause. Originally drafted by the Framers to prevent anti-competitive legislation by the states, the Commerce Clause has been interpreted to allow federal regulation of everything from homegrown wheat to homegrown marijuana. In this case, liberals are rooting for the Court to permit a novel form of regulation—requiring people to enter a stream of commerce by a federal requirement that they purchase health care coverage. If you believe the politically correct answer is to defer to the acts of Congress, pause only for a moment over a different challenge to congressional action—the Defense of Marriage Act case, the validity of which is now wending its way to the Supreme Court in a challenge by the Attorney General of Massachusetts, a state that pioneered equal benefits for same-sex couples and has validated same-sex marriage. Congress passed the Defense of Marriage Act during the Clinton Administration by a far wider margin than the Affordable Care Act received. Those who seek to have the Defense of Marriage Act struck down are generally on the left; and those who support it on the right. So, the positions on the proper scope of Supreme Court review are switched.
That is why we have a Supreme Court. The Court is supposed to apply neutral principles of decision, and despite some intemperate language in opinions from time to time, it does. For those who doubt this, they need only look at the transcripts of oral argument in the ACA case. The Court granted an unprecedented three days of oral argument in the case, and questioning was exhaustive. The questions were not merely for show. Chief Justice John Roberts asked probing questions that revealed his discomfort about being asked to second-guess the actions of Congress. Similarly, Justice Breyer, who is considered a reliably liberal vote on the Court, clearly had misgivings over the Obama Administration’s sleight-of-hand in calling the individual mandate a tax one day of oral arguments, but saying the opposite thing in its argument another day—and his questions showed that he takes the constitutional implications of the difference very seriously (the Congress can do almost anything under the tax-and-spend power, but not nearly as much under the regulatory power at issue).
So, for those who are hoping to run against the Court in this election year, or suggest that Court-packing is the answer to their concerns (as Jonathan Turley inexplicably did over the weekend in the Washington Post), I’d suggest that they look at the transcript of oral argument in the ACA case. The transcript shows serious, erudite jurists deliberating difficult cases using neutral principles. As we look at nations around the world struggling, at the cost of many lives, to establish the rule of law, we’d do well to be grateful for how well, within the bounds of human frailty, our own Supreme Court does in adhering to such principles.