Is chief justice taking high court in new direction?
Most Americans are not U.S. Supreme Court “groupies” who follow what the nine justices are doing and saying. They may tune in to rulings of the court now and then, but otherwise they probably don't have a lot of interest in the inner workings of it.
But some of us are court “groupies” who keep track of the court's actions and the rulings of the justices. And for us this was a great week for Supreme Court watching.
There were two major rulings: one impacting the nation as a whole and the other involving Arizona specifically.
The health care law ruling was a huge decision for the nation, and perhaps even a historic one for all Americans.
For Arizonans, the ruling invalidating much of our state's controversial SB 1070 law dealing with illegal immigration was also very significant, the outcome of which could eventually impact other states that have copied the intent of that law.
Both involved important constitutional issues and have helped to define where the line exists between federal and state power — a debate that has been an ongoing one from the beginnings of the nation.
Those who watch the Supreme Court on a regular basis know that in recent years, many of the most controversial constitutional disputes have involved very close votes, often 5-4 one way or the other. That is because currently there are two “wings” of the court — one more conservative (five justices) and one more liberal (four justices) in its interpretation of the Constitution.
Typically, close votes are decided by a “swing” vote — with “liberal” outcomes often due to Justice Anthony Kennedy going along with the four more liberal justices. That is why he has gotten the reputation of being “the decider” because he sometimes switches between conservative and liberal stances.
The big surprise this week for court observers came when Chief Justice John Roberts — a steadfast conservative on the court — became the “decider” in the key 5-4 vote on Obamacare, joining the more liberal justices in deciding to keep the national health care law. This week was the first time he did so since being appointed to the court in 2005 by President George W. Bush.
His switch infuriated opponents of the health care law and some of his fellow conservative justices, too.
Many of his supporters are now asking how he became such a “heretic.”
Well, some legal observers say he didn't. He actually held true to his conservative principles and to his belief that the high court should not be an “activist” body.
He has indicated in the past that he is concerned about the image of the court and that the American people may be losing confidence in the impartiality of the court due to the close votes. He is also concerned about the perception — depending on the decisions one way or the other on controversial issues — that the justices are “legislating” rather than interpreting the law.
He appears to have given some insight into how he hopes to resolve this issue in the opinion he wrote on Obamacare, although ironically it was another of those close votes.
He agreed with his conservative colleagues that an insurance “mandate” under the commerce clause of the Constitution was not constitutional. It was a conventional view for him. If he had left it there and overturned that provision, it probably would have been a deadly blow for the health care law.
But he accepted a secondary argument of the government's lawyer that it was not actually a mandate, but rather a tax since a refusal to buy insurance involves only a tax penalty administered by the Internal Revenue Service. That made it constitutional, Roberts said.
Why did he accept this argument, which even he said he did not find totally plausible? Because, he said in his opinion, “we (the justices) have a duty to construe a statute to save it, if fairly possible.”
He went on to say the benefit of doubt must go to the lawmakers who created the statute since they are elected and the justices are not. It is not the court's right to decide whether a law is fair or moral or beneficial or bad for the country, as long as there is a path to see it as constitutional. The voters elect lawmakers to make the other decisions.
That is about as non-activist a position as you could find. It is remarkable, yet I doubt many — even those who have accused the court of being activist — will be pleased with it. The reason is that many people really want the justices to be activist — as long as they rule the way they want them to rule. That is why we have liberal and conservative appointments to the court.
The day after the Obamacare ruling Thursday, Roberts was speaking at a legal gathering and reflected on what he hoped the legacy of the court would be under his stewardship. He said he hoped it would be described this way: “We did our jobs according to the Constitution, and to preserving equal justice under the law. There is no better legacy you can ask for.”
Roberts is a relatively young justice, so it is likely he will be on the court for an extended period of time. Some observers believe his position on Obamacare could give him a historic prominence and that he used this ruling to “put his stamp” on the court.
I don't know about that — it is something for historians to decide.
But I do know today there is a different view of the court and its chief justice than there was before Thursday morning.
Terry Ross is director of the Yuma Sun's News and Information Center. Email: email@example.com. Telephone: 539-6870.