The agony of Supreme Court confirmation
“Judges are not politicians in robes.” Judge Neil Gorsuch, nominated for our Supreme Court, used that high-sounding phrase to emphasize the majesty of the law, and also by the way to avoid answering hypothetical case questions by those politicians known as United States Senators. In one sense, he was right. Our common law system and tradition is the bedrock foundation of our government. Judges should not make decisions lightly or arbitrarily and rarely do, especially at the federal level.
That is the main reason why the great majority of Supreme Court decisions are not 5-4, but rather are decided by more substantial margins. An excellent example is the 2011 decision in Snyder v. Phelps regarding freedom of speech. In an 8 to 1 decision, the Court determined a hateful group can picket military funerals, despite the added suffering imposed on those bereaved. The bigoted “church” involved craves publicity, pursued in disgusting ways, and won’t be named in this column.
The Supreme Court underscored First Amendment protection of freedom of speech, which distinguishes our country from many others and guarantees a fundamental strength. Some governments in Europe are expanding censorship, an unfortunate contemporary trend even if at times well intentioned.
By contrast, in June 2012 the Court narrowly upheld the Affordable Care Act, now generally referred to as Obamacare, and a related law. National Federation of Independent Business v. Sebelius was a close 5-4 vote, with Chief Justice John Roberts joining liberals Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. Dissenting were conservatives Samuel Alito, Antonin Scalia and Clarence Thomas, plus prominent swingman Anthony Kennedy.
President Barack Obama’s statement immediately after the Court decision emphasized benefits for people in need, not the legal considerations. U.S. House Democratic Minority Leader Nancy Pelosi (D-CA) recalled Sen. Ted Kennedy’s (D-MA) leadership in health care reform. House Budget Committee Chairman Paul Ryan (R-WI) expressed disappointment in the ruling, stating the November election stakes had been raised. His comment remains timely given the failure of Republicans to pass healthcare reform.
In the Sebelius case, United States Solicitor General Donald Verrilli Jr. faced challenging conservative questioning, focused on mandatory insurance along with expansion of the Medicaid program for low income Americans. The Court decision upholding the Obama medical care legislation is based on federal authority to levy taxes. The Obama administration argued also that to require insurance, with associated penalty, was justified under the interstate commerce clause of the Constitution. The Court rejected this argument. Chief Justice John Roberts is erudite, polished and cool under pressure, with a manner similar to Gorsuch. Despite his skills, he has so far failed in his announced goal of greater consensus on the Court.
This brings up another important case. Chief Justice Earl Warren on taking office in 1953 confronted a likely 5-4 division on the case of Brown vs. Board of Education regarding school desegregation. Warren delayed the vote and spent months consulting his new colleagues. The ultimate vote was 9-0.
Earl Warren was a successful career politician. Historically, politicians were well represented on the Supreme Court. President Abraham Lincoln, our greatest president and a singularly skillful politician, elevated Treasury Secretary Salmon P. Chase, his powerful rival, to be Chief Justice of the Court. Chase excelled in the difficult job. Roberts has written that the Founders of the United States were “practical statesmen, not metaphysical philosophers.” The academics and activists who make up today’s Supreme Court should regularly be reminded of this.
Arthur I. Cyr is Clausen Distinguished Professor at Carthage College. Contact at acyr@carthage.edu