On Thursday, the Supreme Court upheld the Affordable Care Act – individual mandate and all – by a narrow vote of 5-4. Some celebrated, some were outraged, and the debate surrounding the Court’s decision is still going strong.
In all of this, however, I cannot help but notice the absence of a particularly important question – one that nobody has ever asked: does the Court’s opinion matter at all?
While it has become customary to think the Supreme Court is the “be all end all," the “final arbiter of constitutional questions," one might wonder where this authority actually comes from. Yes, Article III of the Constitution grants “judicial power,” but what exactly does that mean?
As it turns out, the Founding Fathers, former presidents and justices have produced different opinions on the issue. Here are a few worth thinking about:
In Hamilton’s understanding of the judicial power, an insulated and independent Court was necessary in order to preserve a “limited” Constitution. He saw the judiciary as an intermediate body that could stand between the legislature and the people, one which ensured Congress would not step over constitutional lines. In order to do so, they alone were given the final say on constitutionality.
Interestingly, Hamilton also supposed that the judicial branch would be, by far, the weakest of the three branches. While our legislature controls the money, and the executive holds the “sword,” the judiciary has “merely judgment.”
Of course, given the outcry witnessed on Thursday, one wonders just how “weak” the modern judiciary really is.
2. Thomas Jefferson, Letter to Judge Spencer Roane. “Each of the three departments has equally the right to decide for itself what is its duty under the constitution, without any regard to what the others may have decided for themselves under a similar question.”
For Jefferson, the Court's independence was more of a problem than Hamilton may have supposed. As he saw it, any authority or power that is “independent, is also absolute.” Given an independence in interpretation, Jefferson felt that the Court would hold the Constitution in its hands and mold it like “a mere thing of wax.”
Today, as we reflect upon the liberties taken by someone like Chief Justice Roberts, we ought to pause and give serious consideration to Jefferson’s critique. Do we accept judicial supremacy simply because of tradition? How much does their “independence” in interpretation play into that acceptance?
3. Chief Justice John Marshall, Opinion in Marbury v. Madison, 1803. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”
It is a peculiar coincidence that the earlier link from the Supreme Court’s blog called the ACA decision “A Marbury for our time.” While Chief Justice Marshall faced the danger of an uncooperative Jefferson administration, Chief Justice Roberts faced the danger of “staining itself with the appearance of partisanship.” In other words, Roberts was in danger of making the Court appear too political.
Either way, both chief justices were indeed able to establish and uphold the Court’s finality in constitutional interpretation. But while these may have been wise moves politically, their accuracy is another issue entirely. For instance, doesn’t a legislator “apply the rule” of the Constitution every time he or she drafts a new law? And is not the president exercising his understanding of constitutional powers through pardons, vetoes, etc?
4. Abraham Lincoln, Speech on the Dred Scott decision, 1857. “Judicial decisions have two uses-first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise.”
Alright, I may be cheating a bit here, but Lincoln is generally a fan favorite -- so, I figured, it would be good to include him. For Lincoln, the Court’s finality was a tricky sort of thing. For the case in question – the single thing that they were ruling on – Lincoln agreed that the Court’s opinion was “absolute.” When it came to precedent, however, and setting down a constitutional interpretation, things were a bit more complicated.
The only time in which the Court’s choice could be taken as constitutionally “final” is when they are able to “fully settle” the case. What is “fully settled?” Well, Lincoln lays out about six different qualifications, including a “unanimous concurrence,” no “apparent partisan bias,” “in accordance with public legal expectation,” on and on. One could only imagine how much credit he would have given to Thursday’s opinion.
There are many other good thoughts on this throughout American history, but these are some of the more well-known and influential.
Our current understanding of “judicial power,” while very broad indeed, is certainly not the only way to think of the Court’s role. For those who were troubled by the Court’s opinion on Thursday, it may be time to bring this debate back into the public discourse.