James Sasso, Associate Editor

During a recent interview on NPR’s On Point with Tom Ashbrook, Justice Stephen Breyer repeatedly denied the claim that contemporary Supreme Court Justices act as an almost “super legislature” that supersedes either Congress or the President. He maintained the traditional view of a justice; he or she does not act politically, but only interprets the Constitution. While much of what the Justice says is correct and his work on the Court extraordinarily admirable, it is hard to succumb to his argument. Regardless of whether Justice Breyer wants to admit it (at least publicly), the Court has certainly become more politicized over the past 50-60 years than originally planned in the Constitution. The Court’s decisions, as is the case for landmark decisions like Brown v. Board of Education, often act in place of legislation. Besides the decisions, the justices themselves have become political tools of widening ideological differences between the two parties. With this kind of politicized Court, the question becomes, what will happen to the Affordable Care Act, more commonly known as “Obamacare?”

As the role of the federal government expanded starting in the 1960s, the role of the federal courts also began to expand. With government policies touching upon many more aspects of life, the Supreme Court necessarily had to address questions addressed entire parts of society, rather than the traditional litigation of one party against another. In this class litigation, a judge’s ruling must be broad enough to encompass all those affected and all of those potentially affected in the future. For example, by proclaiming an affirmative action policy constitutional, the Court basically invented legal justification for a program outlawed by a Congressional statute (Section 703j of Civil Rights Act of 1964 which forbids preferential hiring of any kind).  Thus the Court, by taking on broader questions of constitutionality that affect entire classes of people, became another arena of policy-making. If the Court decides something, such as education, is a constitutional right then it automatically overturns any legislation preventing children from receiving an education. Similarly, it mandates that all governments provide said education; a demand that resembles the responsibility of the legislature.

In general I do not think this is a terrible thing. The Supreme Court Justices are nine of America’s most intelligent people who have historically acted with prudence and foresight (with a few very notable exceptions). Unfortunately, the independence of the Court, protected by appointments based less on ideology than on intelligence, has disintegrated somewhat in recent years. Yes the Supreme Court still acts completely independently of a president or Congress, but the ideological divide has come to mirror that of America’s polarized parties. As the parties started the drive to their present polarized point in the early 70s, presidents realized that in order to protect the interests of their party they would have to select judges more for their ideological views than for their judicial record.

With the last 40 years of politics neither dominated by Republicans or Democrats, the appointment of judges has left the Court divided into camps: 4 liberals, 4 conservatives and 1 “swing” vote. As such, the Court now better reflects the partisan divides of American politics than it does an intellectual debate among scholars deciding on whether or not an issue is constitutional. The ideologies of the justices are so clear that one can predict Justice Thomas’ vote against the health care bill with the precision of declaring that Washington D.C. will vote for Democrats.

It is troubling that some of the justices seem to have already declared their support for certain cases that are to come before the court. Justice Breyer sidestepped a question about whether or not Justices Thomas or Alito make up their minds for those cases that are obvious fights between differing ideologies, even before they read or hear one argument in the case. Justice Thomas, with his disdain for asking questions during testimony and his wife’s involvement with the Tea Party (not to mention his personal friendship with a major benefactor of the Tea Party), raises many questions about the integrity of certain members of the bench. Do the justices actually address the issues at hand or merely couch their ideologies within veiled explanations of constitutionality?

The Obama Administration’s push to have the Supreme Court rule on the new health care law in its upcoming term, which would provide the country with a ruling of constitutionality before the November elections, is puzzling. If it goes down in defeat, the hallmark legislation of Obama’s first term, something on which he could at least hang a piece of his liberal hat, disappears. If it survives the battle there will undoubtedly be a renewed effort to overturn the bill. As what happened with abortion, a Supreme Court decision in favor of the Affordable Care Act might inflame those already opposed to the bill, driving up Republican participation in the 2012 election.

Democrats sorely need something to energize their base, but a Supreme Court ruling justifying the health care bill will not likely provide that boost. It is already fairly unpopular with many Democrats, either for being too liberal or being too conservative, which means that its vindication in the Court would inspire little emotion from the base. It has already passed, so those who approve of it would feel nothing new, and if it were to fail it would likely only inspire the limited number of Democrats who support it to go to the polls. And honestly, these people are ardent followers of President Obama who will almost definitely vote for him as is.

Perhaps President Obama is confident enough in the constitutional merits of his health care plan that he would like to have the mattered settled once and for all as he did with the hoopla surrounding his birth certificate. Unfortunately, there is good reason to worry that at least 4 members of the Court will vote to overturn the plan’s mandate clause. With four liberals all but assuredly voting in favor of the mandate Justice Kennedy is left with the consequential vote. If he were to vote against the mandate, then the entire Obama plan might as well be eliminated. In any case, whatever ruling the Court has will be extraordinarily political. The Court, for all intents and purposes, has become conservative versus liberal, just like America, which does not bode well for the country. Intelligence, logic and prudence should define the Court’s rulings, not ideology.