|
 |
 |
|
The Court has spoken - and we must listen
It might be said that all Supreme Court decisions are equal, but some are more equal than others. Upon being handed down, each decision has undeniable legal, political, and policy dimensions. What makes any one decision a “landmark” – think of Lochner v. New York, or Brown v. Board of Education, or Roe v. Wade – is that its repercussions on the law, on politics, and on policy usually last for decades if not longer.
Today NFIB v. Sebelius will take its place in that select group of cases.
Today, the Court upheld all the major provisions of the Affordable Care Act, including the controversial individual mandate. Surprisingly, it was Chief Justice John Roberts who provided a decisive vote for the majority, rather than Justice Kennedy who had increasingly become the swing vote on numerous important cases after the retirement of Sandra Day O’Connor.
Legally, the 5-4 decision is another indication of the stark ideological divide in the Court when it comes to a whole host of issues. To be fair, this ideological divide predated Chief Justice Roberts’ appointment. Yet today’s ruling needs to be seen in the context of other high profile cases over the last decade, including Bush. V. Gore in 2000 and Citizens United in 2009. In NFIB, it is once again evident that there is little consensus in this Court on the powers of Congress or the role of the Supreme Court to limit those powers.
We may never know all the reasons why Roberts chose to vote with the liberal wing of the Court. Regardless, no Chief Justice prefers divided decisions, especially on landmark decisions. Think of Chief Justice Warren securing a unanimous vote in Brown, or Justice Blackmun a 7-2 vote in Roe – or even Justice Henry Billings Brown, who wrote the now disgraced majority opinion in Plessy v. Ferguson that was signed by all of his colleagues except one. The Court’s legitimacy is always on the line, never more so in high profile cases. Unanimous or near unanimous decisions provide the Court a certain amount of cover. A decision like this is more of a cacophony – and moves us in the opposite direction. Ultimately it may reflect on Roberts’ stewardship for years to come when the books are closed on his tenure.
Finally, policy wise: this is perhaps the most important thing to come out of this ruling but one which will no doubt get the least amount of coverage. While the legal and political implications will be debated ad nauseam in the weeks and months to come, it is undeniable that beginning in just a year and a half more Americans will have health insurance now that the Court has spoken. By official nonpartisan estimates, more than 30 million more Americans will be covered as a result of the Affordable Care Act. It remains to be seen if those figures are accurate – or if the law helps to bend the cost curve as advertised. If the Court had thrown out parts or even all of the law, then that would have been one of those “known unknowns.” It would have been hard to predict what might have happened had the decision gone the other way. Who knows what would have happened if the Court had not desegregated schools in 1954, or declared abortion legal in 1973.
Through all of this, one thing is clear; Alexander Hamilton was certainly wrong when he argued in Federalist 78 that the Courts have little power relative to the Executive (the “sword”) and the Legislature (“the purse”). The power of judgment is an awesome power – as have just witnessed once again.
Malone is an associate professor and chair of the Department of Political Science at Pace University
Most Viewed RSS Feed »
