SCOTUS:The Most Dangerous Branch
Many conservatives have taken the outcome of the Obamacare case, known to the courts as National Federation of Independent Business v. Sebelius, none too well. Their response is understandable: In an unusual judgment featuring two distinct 5-4 voting blocs bridged only by the chief justice, the Supreme Court concluded that Obamacare’s individual mandate was not constitutional as an exercise of Congress’s power over commerce, but was perfectly valid as a tax.
That conclusion is troubling, to say the least. While the decision penned by Chief Justice Roberts purported to place some bounds on Congress’s ability to regulate using the commerce clause, the four justices who shared Roberts’s conclusion refused to join his opinion — meaning that the commerce-clause limits Roberts endorsed may not be binding in future cases. Meanwhile, the rest of Roberts’s opinion, joined by the Court’s four more liberal justices, suggested that most any regulation Congress might wish to enact could simply be re-characterized as a tax — and be constitutionally sound as a result. Conservatives are right to be deeply worried.
Still, one did not have to listen too closely to the outcry on the right to hear more than concern about legal reasoning. Conservatives’ reaction was laced with a certain bitterness — a deeply felt, almost personal anger at the Court and its justices, particularly Chief Justice Roberts. This sense of betrayal was moved not only by a conviction that the Court had gotten the law wrong, but also by disgruntlement at having lost a profoundly important political battle — and at the hands of a supposed ally.
While conservatives surely have cause to be vexed with the Court for its legal judgment, it is this sense of betrayal that exposes just how dangerous the Court as an institution has become. The true peril posed by the Supreme Court in our time lies in the idea that the Court can ever serve as an ally, that it can resolve political difficulties, and that it can be counted upon as a political partner or an agent of political reform. It should do none of those things, and it threatens our constitutional order precisely to the degree that it attempts them.