Sunday, July 15, 2012
Parsing the ObamaCare Decision, Part Three
And can the right decision undermine the legitimacy of an institution?
Assuming, of course, that the decision on Obamacare was the right one, which I do not think, at present, that it was, but, of course, I haven't read the decision yet, and so I have to withhold judgment.
The idea that the Supreme Court's decision on Obamacare could, or could not, determine whether the Court was viewed as legitimate begs the question: by whom? Consider this: Most commentators prior to the decision were suggesting that the Roberts Court would uphold Obamacare not because of the law's being constitutional, at all, but because the Court wanted to preserve it's credibility, to keep people from doubting the Court's role in our society...
...which, of course, is exactly the kind of thinking that delegitimizes the Court -- to suggest that the Court would make a political decision (political, in the broad sense of making decisions to appeal to a broad base of people, and as opposed to judicial) to avoid being seen as political is what leads people to protest the Court and try to sway the justices' opinions through public demonstrations and pressure (such as when Obama suggests that a ruling against his law would be illegitimate).
So those commentators were part of the problem, giving people the notion that the Court rules on something other than the facts before it and the issues of law before it -- and can the public be blamed if the 'experts' tell them something and they believe it?
And they persist, in that idea -- that Atlantic article continues the idea that the Obamacare decision was made, by Roberts alone, really, not because it was right but because it was expedient, that Roberts made the decision he did not because he truly believed that the law was based on the taxing power, but because he truly believed that siding with the liberals today would mean that later on they would side with him or he would have political cover for doing other things.
That is a political act, and The Atlantic and other commentators are feeding into the notion that the Court is a political body, one that can engage in horse-trading and consider the ramifications of its decisions on public policy, which is a twistification (I got the word from The Atlantic article) of what the Court (the Courts) are supposed to do.
Courts ought not be concerned with whether a law is a good or bad one; that is what legislatures are for. Courts ought not be concerned with whether the public views them as legitimate or not; Courts are in fact the bulwark against public opinion.
We've started twistifying what courts are for, and the public now has the perception that the Courts are in fact a superlegislature, sitting above the other two branches and determining not just if something is legal, or not, but if something is right or not.
But the public didn't get that perception on its own. It got that belief from the "experts" who talk about the Court, experts who are anything but because those experts themselves have a wrongheaded view of the Court.
Every time some talking head on TV suggests that Roberts' decision -- his unilateral upholding of the Obamacare law -- was based on something other than Roberts' sincere belief that the law was a proper exercise of taxing authority, that 'expert' does damage to the legitimacy of the Supreme Court.
It may be a mere pretext that the Court does not find itself influenced by political beliefs -- but if so, it is a valuable pretext that we must maintain, because the more we suggest that the Courts are swayed by the same concerns that affect the legislature and the executive branch, the more we make people believe that, and the more people believe that, the less they are willing to believe in the rule of law and the more they will believe only in the rule of a current political party.
We in America have, at all levels, a degree of trust in our government that is unprecedented around the world. That degree of trust comes from the longstanding idea that we have a system of "checks and balances," that there is a part of the government that is responsive to our every whim, and that there is a part of the government that is not.
Experts talking about the Roberts' decision are undermining that latter belief -- and doing so on the basis of their own imagination, since they do not know why Roberts ruled the way he (and he alone) did. Those "experts" are a worse threat to democracy than all the Eric Cantors of the world.