Friday, 29 June 2012

How the SCOTUS saved itself, rather than the POTUS


The problem with the United States Supreme Court is that it's supposed to be a neutral arbiter of what is, and is not, constitutional.

Except that it obviously isn't. If you wanted any more confirmation of that fact than take a look over Justice Scalia's extraordinary and unprofessional rant the other day about Arizona's immigration and document-checking laws. Want to read a ridiculous partisan, personal screed from a childish ideologue? Look no further.

That's why yesterday's decision by the Supreme Court - to uphold President Obama's Affordable Care Act in all essentials - is so important. It's preserved a huge decision for the American people and the American electorate, rather than nine black-clad appointees on the bench. Rather cleverly, the Chief Justice and his colleagues have avoided the danger that their personal views might seem to hold more sway than those of the President and the Congress. Chief Justice John Roberts (above) knows that forcing people to buy health care insurance is a red-button issue. But he also knows that it will be one capable of being resolved in the Presidential election in November. Or not, of course, since neither party is likely to hold the 60 seats in the Senate that will make them filibuster-proof in the upper chamber.

So Roberts has hunkered in a foxhole to avoid all the shooting. He's had to tie himself in knots to do it - arguing that conservatives were right that one cannot use the Commerce Clause of the Constitution to force people to buy anything, but that liberals can rest easy, as the government is effectively forcing you to pay a tax. But he's managed a deft political manouevre that will resonate for many years - even decades.

We've been here before, of course. The Supreme Court struck down some elements of President Roosevelt's 'New Deal' recovery programme just before he sought re-election in 1936. Little harm it did him, of course - or his reputation (partly deserved) as an economic saviour. The Supreme Court's leader at the time, Chief Justice Hughes, tacked and trimmed all he could to avoid an all-out constitutional war with the president (with some success). Roberts knows all this. He knows the harm that's been done in the past to the Supreme Court's authority by its rulings on race, on the National Recovery Administration, on big corporations' 'right' to spend as much as they like on political campaigning, and on much else. He's no fool.

The whole thing is a victory for good sense - though it leaves the American political scene in Congress and White House more deadlocked, more partisan and more extreme than ever.

That's a story for another day, though. For now, Justice Roberts has looked over the precipice, and declined to throw himself off it. Good for him.

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