In the last couple of days I have been reading and listening to a lot of commentary from a variety of folks regarding the role of our chief justice in the recent PPACA decision. I and others have commented on the motives of our heretofore fairly solid chief justice. I realize the danger of trying to figure out motives but the reality is that when a person acts out of character I want to seek to attempt to understand and to explain. I firmly maintain that if Chief Justice Roberts’ motivation is simply the preservation of the legitimacy and the non-partisan public perception of the Supreme Court, and this is the most altruistic motive I can see that explains the behavior, then his motivation is misplaced. I insist that all of the Supreme Court justices including the chief justice have been appointed to serve the constitution and the founding principles of this nation enshrined therein. When they neglect this sacred duty in order to preserve the perceived reputation or legitimacy or “political neutrality” of the institution of the Supreme Court they are in effect turning the constitution on its head. What is more important, the constitution or the institutions created by the constitution? What happens to constitutional checks and balances when one of the branches of government refuses to exercise its authority out of fear that it will be perceived as political?
This idea has been tossed around that the chief justice views the role of the Court as that of an umpire. This idea is repugnant. The Court has an active role to play in the preservation of this country and its founding principles. Ah, “activist court”, you counter. Well, when a Court needs to assert the constitution and assert the freedoms and government limitations contained therein then the court must act, regardless of whether or not the media or the political parties may point to its action as activism and even partisanship. The Court’s duty it to do what is right not what the public may perceive to be right. When I worked at the Supreme Court back in the 1990?s, I used to help the justices go through their mail. When a big case came along there were justices who would actually have their mail separated and counted according to the positions taken regarding the upcoming case. This “voting” was then allowed to influence these certain justices’ opinions on the case. I found reliance on public opinion by justices repulsive then and I do now. If the public is wrong let us educate the public but in the meantime let the Court do what is right.
I have seen a lot of commentary to the effect that those of us who oppose PPACA should take the necessary political steps and not look to the Supreme Court to carry out our will in the realm of public policy. Guilty as charged, I am one of those who want to get rid of PPACA because it is bad law. And I wanted the Supreme Court to act. However, I did not want the Supreme Court to act because the law is bad. I wanted the Court to act because the law is unconstitutional. I wanted the Court to act because its failure to do so leaves the judicial and executive branches of the national government unchecked in their continual arrogation of power. Unless this tide is stemmed states’ rights, individuals’ rights and families’ rights will be a thing of the past in short order.
As many commentators have pointed out, the way to deal with PPACA is now political. I totally agree, and I’m on board. Let’s get with it. In fact, the whole PPACA debacle should never have arisen if we had done a proper job of forming ourselves in our voting in 2008. But I’m going to make this one final point with regard to the Court – its reason for being is to serve the founding principles of this country as they are enumerated in the Constitution. The failure of the people to exercise their responsibility well does not absolve the Court from its obligation to exercise its responsibility well.
