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Supreme Court Accused of Playing Politics

News analysis: As new term starts, memories of recent rulings linger

By Gary Feuerberg
Epoch Times Staff
Created: October 4, 2012 Last Updated: October 4, 2012
Related articles: United States » National News
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Panelists discussed the 2012 Supreme Court Sept. 20 at the Woodrow Wilson Center. (L to R) Susan Low Bloch, Georgetown University Law School; David Salmons, Partner, Bingham McCutchen; Adam Liptak, The New York Times; and Stephen Wermiel, American University, Washington College of Law. (Gary Feuerberg/The Epoch Times)

Panelists discussed the 2012 Supreme Court Sept. 20 at the Woodrow Wilson Center. (L to R) Susan Low Bloch, Georgetown University Law School; David Salmons, Partner, Bingham McCutchen; Adam Liptak, The New York Times; and Stephen Wermiel, American University, Washington College of Law. (Gary Feuerberg/The Epoch Times)

WASHINGTON—The Supreme Court began a new term on Oct. 1 with a slew of cases certain to attract controversy. It will be hard, however, to surpass the interest of last term when the Court decided on Arizona’s state immigration enforcement law and the federal health care reform law.

It is not unlikely that whoever the president is for the next four years—Barack Obama’s second term or Mitt Romney’s first—will have a vacancy to fill. In 2013, Justice Ruth Ginsburg will turn 80, and Justices Antonin Scalia and Anthony Kennedy will reach 77.

The Court determined by 5-4 vote whether a person in Arizona will have to show proof of citizenship when stopped for a minor traffic violation. It upheld 5-4 that an adult will have to purchase health insurance or otherwise pay what Chief Justice John Roberts calls a tax.

Decisions like these remind us that although the Court may not be in the public eye to the same degree as executive and legislative branches, it plays a significant role in the lives of Americans.

Evidence shows that voters show little interest or understanding regarding appointment of Court justices when considering their choice for president, or when selecting their senators who confirm nominations.

“There is almost nothing more important than a president appointing a Supreme Court justice,” said Adam Liptak, New York Times correspondent for the Supreme Court, who laments the lack of significance the Court holds for voters. Liptak was speaking on a panel Sep. 20, sponsored jointly by the American Bar Association and the Woodrow Wilson Center.

It is likely that the next president—whether incumbent Barack Obama or GOP candidate Mitt Romney—will have a Court vacancy to fill. In 2013, Justice Ruth Ginsburg will turn 80, and Justices Antonin Scalia and Anthony Kennedy will reach 77.

While the composition of the Court may not stand out on the average voter’s radar, for some watchers of the Court it matters a great deal. They see the Court as a reflection of the highly partisan nature of the country.

“For the first time since the 1930s, we have an ideologically divided Court where all the liberals were appointed by Democratic presidents, and all the conservatives were appointed by Republican presidents,” said Liptak.

In the Bush-Gore decision that concluded the 2000 election, the Court was ideologically divided but not in a partisan sense. The same was true of Citizens United when the Court overturned Congress’s regulation of the financing of political campaigns.

The liberal Justice David Souter was appointed by Republican President George H. W. Bush, and the liberal Justice John Paul Stevens was appointed by Republican President Gerald Ford.

Chief Justice Roberts’s “Betrayal”

With numerous 5-4 decisions that break down along partisan lines, the public may come to see the Court as a political institution. Concern for this perception may have played a crucial role in the recent Affordable Care Act decision.

Based on court and media leaks, Chief Justice Roberts is known to have switched his stance at the last minute against the urgings of conservative justices who wanted to strike down the individual mandate, thus enabling the liberal justices to be the majority. There has been much speculation by the pundits on why he chose to align himself with the liberal wing and uphold the federal health care law.

Roberts’s written decision states that the individual mandate that requires most adults to purchase health insurance was constitutional based on Congress’s taxing authority.

The Court watchers had expected the Commerce clause and power of Congress to regulate interstate commerce would be the basis for upholding the law, but Roberts agreed with conservative justices in dismissing that argument. Instead, he surprised his colleagues when he upheld the individual mandate as a tax, an argument barely mentioned in the oral briefs.

“I think John Roberts was influenced a bit by the Court being political as it was gaining a reputation for being,” said Susan Low Bloch, Georgetown University Law School.

Liptak made the case that Roberts’s motive, as Chief Justice and custodian of the Court, was instead to protect the “prestige, authority, and integrity of the institution.”

“If you have a partisan division, five Republicans and four Democrats striking down a Democratic president’s signature legislative achievement, that will have sent a message that the Court is a political institution and I don’t think that John Roberts wanted to send that message,” he said.

This would be all the more true in a presidential election year, where it would likely stir up more controversy.

If Roberts had been appointed as Associate Justice rather than Chief Justice, he might not have felt it was incumbent upon him to protect the reputation of the Court, Liptak added.

Roberts’s position to call the individual mandate a tax is indeed hard to rationalize. Congress had deliberately avoided the term “tax” when writing the legislation, and treated noncompliance as a “penalty.” It is apparent that the fee for noncompliance is so small that Congress was not using it as a source of revenue, but as an incentive for individuals to comply with the law.

David Salmons, partner at Bingham McCutchen, disagreed in that Roberts was motivated in the way Liptak said. Salmons said that although it was “an odd position” to treat the individual mandate as an “accidental tax” so that he could uphold the Affordable Care Act, he prefers to take Roberts at his word. Salmons found the Roberts’ argument persuasive. Salmons has argued 14 times before the U.S. Supreme Court.

Salmons said that if Roberts’s intended goal was to minimize the political influence of the Court, it would surely “backfire.” It would mean that every time there was a politically charged case, the Chief Justice would decide based on the dire needs of the republic, a position that Salmons said is not sustainable.

We will probably never know who is right about Roberts’s motivation, but there is no disagreement that this was “a wrenching moment for the Court,” as Liptak put it.

Jan Crawford¸ CBS News chief political and legal correspondent, reported in July soon after the decision was handed down, that the “discord at the Supreme Court is deep and personal after Chief Justice John Roberts’ surprise decision to side with the liberal justices. … This discord is going to affect this Court for a long time.”

The sense by conservatives that John Roberts betrayed them is widespread. One conservative blogger wrote, “What Chief Justice John Roberts did was judicial activism at its worse.”

But the panelists at the Wilson Center event agreed that personal relationships between the Justices of the Court are remarkably good, that they regard one another “like family,” and that grudges would not likely carry over to the new term.

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