Except for burying the lead on page 2 of his statement, last week’s decision by Chief Justice John Roberts and four other judges on the Supreme Court to not stop Obamacare was impeccable television news. It happened in one place, on time, and mid-day. It looked like one sane man was making history.
The big story is more complex and scarier.
Half of America’s elected leadership—congressional and state Republicans—asked five lawyers to legislate their political vision for the future of a universal social service, over one sixth of the US economy. Rather than try to sweep the fall elections with the proposition that health reform should be turned over to the states holus bolus, they asked five judges to enshrine that proposition in the US constitution.
Reformers are wondering whether five judges are really enough, whether a super-majority would be best, whether judges should be retired well before they're too old to absorb new, complex ideas. Conspiracy theorists and pop psychologists wonder about Roberts' motives. Was he actually worried about what others might think?
Jamal Greene in the New York Times makes a compelling case for term limits along Canada’s lines, and David Dow in the Daily Beast outlines a number or legislative measures to explicitly limit the Supreme Court’s powers.
Click on: www.nytimes.com/roomfordebate/2012/07/08/another-stab-at-the-us-constitution/revisiting-the-constitution-we-need-term-limits-for-federal-judges
Click on: www.thedailybeast.com/articles/2012/07/08/after-health-care-ruling-time-to-reconsider-supreme-court-s-power.html
These reforms, however, will likely have to wait until after the bigger problem is addressed. It’s become reflexive for American conservatives to turn to the US constitution, as written in 1787, to settle arguments with their political opponents.
The point of contention before the Supreme Court was not about infringing the freedoms of individuals. The 26 state Republican supplicants were speaking for the prerogatives of state governments. They were saying that on the issue of health insurance and free riders, reformers must not go to Washington for a solution.
They can debate their ideas in Mississippi and Massachusetts but not, all at once, across America in a nation-wide election.
There is great merit to the argument that the states are underperforming as instruments of social reform. However, using a constitutional court to prevent the federal government from solving social problems the states can’t or won’t fix is a radical challenge to America’s popular democracy.
The American and Canadian federations have bills of rights to protect individuals from ruthless and careless majorities. We don’t ask individuals to wait for popular remorse to correct popular government excesses. That’s the best reason for having accessible independent courts.
However, American conservatives as well as liberals should re-acquaint themselves with an old fashion conviction about their old federal democracy: the electorate and its representatives will, in good time, get around to correcting excessive federal interference—and passivity—in the federal government’s dealings with other democratically elected governments.