SCOTUS:The Most Dangerous Branch

October 13, 2012

National Affairs:

Many conservatives have taken the outcome of the Obamacare case, known to the courts as National Federation of Independent Business v. Sebelius, none too well. Their response is understandable: In an unusual judgment featuring two distinct 5-4 voting blocs bridged only by the chief justice, the Supreme Court concluded that Obamacare’s individual mandate was not constitutional as an exercise of Congress’s power over commerce, but was perfectly valid as a tax.

That conclusion is troubling, to say the least. While the decision penned by Chief Justice Roberts purported to place some bounds on Congress’s ability to regulate using the commerce clause, the four justices who shared Roberts’s conclusion refused to join his opinion — meaning that the commerce-clause limits Roberts endorsed may not be binding in future cases. Meanwhile, the rest of Roberts’s opinion, joined by the Court’s four more liberal justices, suggested that most any regulation Congress might wish to enact could simply be re-characterized as a tax — and be constitutionally sound as a result. Conservatives are right to be deeply worried.

Still, one did not have to listen too closely to the outcry on the right to hear more than concern about legal reasoning. Conservatives’ reaction was laced with a certain bitterness — a deeply felt, almost personal anger at the Court and its justices, particularly Chief Justice Roberts. This sense of betrayal was moved not only by a conviction that the Court had gotten the law wrong, but also by disgruntlement at having lost a profoundly important political battle — and at the hands of a supposed ally.

While conservatives surely have cause to be vexed with the Court for its legal judgment, it is this sense of betrayal that exposes just how dangerous the Court as an institution has become. The true peril posed by the Supreme Court in our time lies in the idea that the Court can ever serve as an ally, that it can resolve political difficulties, and that it can be counted upon as a political partner or an agent of political reform. It should do none of those things, and it threatens our constitutional order precisely to the degree that it attempts them.

For decades, conservatives have warned that the more frequently the Court departs from the text of the Constitution, the more troublesome it becomes. This is certainly true. But the danger the Supreme Court now poses to the constitutional order is more profound, and arises from the Constitution itself. That document embraces an assortment of principles — such as freedom of speech, due process of law, and no government takings without compensation — but aims in all its parts at one purpose: to establish a liberal form of participatory self-government. Because it is fixed in writing, our Constitution places the basic form of our regime beyond manipulation through political contest. But it leaves open many other fundamental questions — like what sort of economic system the country should have, how powerful the president should be, or why and in what manner the country should wage war.

The answers to these questions are not specified in the document, yet the Constitution’s principles surely bear on their resolution. The framers could certainly have left them to courts to decide. But in one of the great achievements of the founding period, that first generation of American statesmen realized that the task of applying constitutional principles to political controversies should be performed by the people themselves. In other words, the American people should be the Constitution’s chief interpreters, filling out its principles and clearing up its ambiguities by their choices at the ballot box.

This form of popular constitutionalism depends on a distinction between constitutional politics on one hand and constitutional law on the other. But here we confront a historical irony: The Supreme Court theframers designed holds the unique capacity to collapse that difference by treating questions of constitutional politics as law instead. When it does, it places political questions beyond the reach of the people and closes the public off from constitutional interpretation.

Through the repeated exercise of this authority over the past 50 years, the Court has steadily drained political power away from the people and toward itself. And even as it has done so, more and more Americans seem eager to resolve questions of constitutional politics through legal channels. They either do not understand, or do not care, that this practice diminishes citizens as agents of self-rule and badly undermines our system of government.

To reverse this enfeebling of the sovereign people, we must understand how we came to our present predicament. This is a story about politics, our Constitution, and the promise and peril of our Supreme Court. It is also a story that, through the lessons it offers, can help us make the Supreme Court safe again for democracy…

Read it all.

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