In one of the most rapidly transmitted pieces of news in history, the Supreme Court decisions on the Affordable Care Act surprised almost everyone.Parenthetically, despite everyone’s having knowledge that the Court would issue its decisions on this, the final day of its term, CNN actually publicized the following:“The Supreme Court has struck down the individual mandate for health care – the legislation that requires all to have health insurance. “That may become as famous as the Chicago Tribune headline “Dewey Defeats Truman” which was the famously inaccurate banner headline on the front page of theChicago Tribune on November 3, 1948, the day after the presidential victory by Harry Truman.
One of the oldest clichés surrounding the Supreme Court is that the Court, in Finley Peter Dunne’s famous formulation, “follows the election returns.”My initial thoughts were that suspicions have forever surrounded the Supreme Court regarding whether the Justices generally are motivated to first determine their decisions and then find a Constitutional rationale to defend them.If one goes through the history of the Supreme Court, one does not find a great many decisions that are antithetical to the political dispositions of the Court.Individual Justices generally vote their political consciences.
I am not a scholar of the Supreme Court, but I have suspected this general motivation for decades and wrote a lengthy piece on it years ago with a lawyer bud.It is indisputable in my mind that politically Chief Justice Roberts dislikes the Individual Mandate, but found it Constitutional as a tax.That is an honorable if impractical vote, but, again, the Court’s mandate is to rule on the Constitutionality of laws.The other justices whose votes all reflect their policy preferences could have coincidentally found their politics and Constitutional adjudication identical, but it could not be the case for all eight of them.
Again, as a non-expert I wonder what the limits of lawmakers are. Is there any limit to government’s freedom to tax anything they want? Is there any legal limit to their ability to redistribute wealth through taxation?
When President Franklin Delano Roosevelt attempted to “pack” the Supreme Court, he made the following point in a speech:“I defy anyone to read the opinions concerning the Triple A, the Railroad Retirement Act, the National Recovery Act, the Guffey Coal Act, and the New York minimum wage law and tell us exactly what, if anything, we can do for the industrial worker in this session of the Congress with any reasonable certainty that what we do will not be nullified as Unconstitutional.”
Justice Robert Jackson is famous for his argument that the Constitution is “not a suicide pact,” a fascinating observation that would seem to mean that punctiliously adhering to principles should stop when overwhelming consequences argue against a Constitutionally sound decision.
Justice Roberts must feel that sustaining the Individual Mandate is not sufficiently destructive to the United States to suspend his principles.
Prof. Richard Vatz teaches persuasion at Towson University and is author of The Only Authentic Book of Persuasion (Kendall Hunt, 2012)