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High court still our best tool to balance power

Posted: June 27, 2012 - 11:03pm

With the Arizona immigration law case decided, America now awaits the Supreme Court’s ruling on the Affordable Care Act. The case has once again turned the spotlight on the court’s role in the nation’s public life. When should the justices be able to override the will of legislatures and voters? Where does judicial oversight end and judicial activism begin? Is the court an impartial arbiter or a political player?

As usual, critiques of the high court depend largely on the tried-and-true principle of whose ox is being gored.

At the moment, the criticisms come primarily from the left. Monday, the court issued a summary dismissal of a challenge to Citizens United v. Federal Elections Commission, which held that corporations have the same political advocacy rights as individuals. The original 2010 decision has come under particularly harsh attack.

More recently, many liberal commentators have warned that if the health care law is struck down in a 5-4 ruling, it will hopelessly compromise the court’s credibility, marking it as partisan and divided. Conservatives, in response, have asked why the assumed votes of democratically appointed justices to uphold the law should not be seen as a show of partisanship.

Few doubt that Supreme Court justices, being only human, inevitably bring their own views to the cases they hear. However they may strive to be impartial and consider only the facts and the law, a person’s standards of impartiality do not exist in a vacuum.

Some justices are fairly open about the ideological underpinnings of their decisions. Reading Justice Antonin Scalia’s opinions, for example, it is fairly clear that he regards laws affirming the special place of Judeo-Christian faith in American society or stigmatizing same-sex relationships as not only constitutional but morally proper.

But rulings sympathetic to liberal social causes are no less influenced by subjective values. Can anyone really argue that Justice Anthony Kennedy was proceeding strictly from constitutional principle when he wrote in Planned Parenthood v. Casey, a 1992 landmark abortion-rights ruling, that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”? What’s more, even many pro-choice commentators agree that Roe v. Wade, the 1973 decision striking down state abortion bans, wasn’t based on solid constitutional reasoning.

For years, complaints about activist judges and “black-robed tyranny” came from conservatives. Indeed, they still do _ not very long ago, then-presidential candidate Newt Gingrich suggested that judges who make “radical” rulings ought to be hauled before congressional panels to explain themselves.

But if the Supreme Court invalidates the health care law, the shoe will be solidly on the other foot. Most conservatives will be convinced that the majority followed the Constitution; most liberals, that it followed political preference.

Yet judicial partisanship isn’t always a clear-cut matter. It is practically an article of faith on the left that in the election dispute of 2000, the conservative bloc on the Supreme Court handed the victory to George W. Bush out of partisan allegiance. Yet a number of democratically appointed judges in lower courts in Florida sided with Bush as well.

Recent polls show that at least 60 percent of Americans believe the Supreme Court will decide the health care case based on politics more than law. That’s an unfortunate sign of our polarized times. Yet, short of appointing a panel of angels as our highest justices, there’s no better way to decide contentious legal issues and to balance the power of elected politicians who may not always speak for the people.

• Young is a regular contributor to Reason magazine and the website RealClearPolitics.

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