October 6, 2014 marked the opening of the new term for the Supreme Court of the United States. The Supreme Court stands as the highest judicial authority in the nation, supposedly as the figurehead of the weakest of the three branches of government. Unfortunately someone may have to inform Alexander Hamilton that he was wrong when he wrote in that “it proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.” Today, strong arguments can easily be made that the Supreme Court is ruling the nation, rather than the intended legislative and semi-powerful executive branches.
An article by the Washington Post’s Jaime Fuller from early May reviews data from a survey from the Democracy Corps, and states that the majority of the public considers the Court to be a political entity. Along with this re-classification of the Court, the public has also changed the way it feels about the Court. It may not be at its historic low, but public opinion toward the Court has been on a noticeable downward trend. One thing that Fuller noted is particularly interesting:
The public may say they are miffed with the Supreme Court’s politics, but their opinion of the court is completely guided by the perceived political bent of the Supreme Court’s decisions. The chart also reveals that although the public thinks the Court is guided by politics, they aren’t entirely sure what kind of politics.
The kind of politics in play is likely traceable to the president who appointed them. Court packing, the policy of packing justices of a similar ideology on the bench, is a strategy that can be dated, in the United States, almost back to the nation’s founding. The various ideologies of the last few administrations have left the bench with nine justices who split 5-4 on almost every major decision. It would seem easier to call Justice Kennedy at home to see how he reads a law on any given day, considering that he is often the swing vote.
A clearly partisan court is never a good thing no matter what side of the aisle you happen to be on, for at that point the standard of law has been thrown out the door in favor of “feelings.” Back in 2009, President Obama nominated Sonia Sotomayor to the Court, and she easily passed a senatorial vote. This is surprising, because she is clearly a poor fit in the setting of a court room. In an article released shortly after her appointment, Charmaine Yoest of NPR writes that “Sotomayor is a judge who makes it clear she decides cases on feelings, not facts. She is a radical judicial activist who readily admits that she applies her personal political agenda when deciding cases.” When John Adams wrote the Massachusetts Constitution in 1780 and included the phrase “government of laws, and not of men” he had the exact opposite idea in mind. That the nation has someone on the bench of the highest court outright admitting to ruling cases based on the way she feels is atrocious. The Court has been known to make mistakes, but this is a complete revolution against the basic republican tendencies on which the country was founded.
Now that the court has effectively been declared a political entity, it would be beneficial to note a few of the cases on this term’s docket that this political entity is set to decide. This Court’s judicial activism will impact at least nine cases, with more likely to be added. Freedomworks has compiled a summary of these nine cases, noting the themes of rights of speech, religious expression, taxes, and healthcare. Given that the last few terms have involved same-sex marriage debates and the Court recently rejected several state petitions on the issue, it is unlikely that the Court will hand down a decision on this issue.
It seems the most significant area to watch is that of healthcare. Tommy Creegan at FreedomWorks writes: “With various ruling across the country over the legality of IRS-issued subsidies under federal health insurance exchanges, there is a growing possibility the Court will take up the issue. If so, there will be another impactful, primetime battle in the high court over the Affordable Care Act.” A political court in any area, but particularly that of healthcare, is a dangerous thing. This could literally be deciding life and death for some Americans.
The last time the Affordable Care Act was evaluated as a whole, Chief Justice John Roberts (appointed by President George W. Bush, a Republican) wrote in his majority opinion that the ACA was not a mandate, but was instead a tax. Given that sort of cockeyed reasoning, I shudder to think what this court–now that it has grown even more political–could hand down in the coming months.