Since holding hearings last week on the 2010 health-care law, the US Supreme Court has come under sharp criticism from Democrats, most notably the president. On Monday, President Obama warned the justices not to overturn his signature achievement in Congress because, as he put it, the court is “an unelected group of people.”
As a former constitutional professor, Mr. Obama should know that members of the high court are approved by elected representatives. Most of all, they are tasked to act as both guardian and interpreter of the guiding principles embedded in the Constitution.
And for more than 200 years, that difficult job has often included overturning laws – some popular, some not.
Most democracies have learned they need a body of independent and intelligent persons, often lawyers, to keep a check on majority rule and to define limits on government power. For that reason, these justices are treated like earthly representatives of higher virtues – thus they are cloaked in robes, sitting on high, working in secret, appointed for life, and otherwise shrouded in mystique.
To give the impression of impersonal justice, Supreme Court justices in the United States don’t allow cameras in the courtroom. They don’t seem to care that most Americans can’t name a single justice. They rarely speak in public.
Not for themselves but for the Constitution and the court, Supreme Court justices try to command respect and cultivate credibility. They rely on previous decisions to bring stability to justice and find a balance between competing interests and values.
Their power to check legislative or executive powers can be troubling at times – to both Democrats and Republicans. Many presidents have tried to sway the court, even drag it down into partisan politics and give it warnings.
The republic’s Founders were also torn about granting so much power to one body.
George Washington said that the few people who could act with neutrality on the court are “no more than a drop in the ocean.” Alexander Hamilton liked the idea of a “selfless and natural elite ruling over people with lesser education.” Thomas Jefferson said, “the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary – an irresponsible body.”
Even Obama appears conflicted on the court’s role. On Tuesday, he backtracked from his earlier comment and admitted that the court has “the final say on our Constitution and our laws and all of us have to respect it.” But he did ask that it recognize its extraordinary power by deferring to Congress.
In its early years, the court’s rulings were unsigned and often implied consensus. That anonymity created an impression of uniform and impartial justice. Today’s chief justice, John Roberts, has sought to return to something like that by trying to avoid 5-to-4 decisions. The court’s legitimacy – in fact the whole idea of running society on basic and fair rules – is eroded if there are many split opinions.
Much is riding on the court’s ruling about the health-care law, especially the “individual mandate” to buy insurance. The court might be wise not to have many signed opinions in this case and to seek a broad consensus among the nine justices. Passage of the law in Congress was divisive enough. It won by only one or two votes in each chamber.
Elected or not, the nine justices have a higher calling to show they can rise above political whims and ideologies – even presidential intimidations – and act as the conscience of the country, helping to define the common good.