Supreme Court Split on Obamacare...Why are You Surprised?

Before it was clear that cases related to the Affordable Care Act would make their way to the Supreme Court, many commentators doubted that questions on individual mandates and extensions of the commerce clause would ever be settled by The Nine, at least not in the context of the healthcare bill. Even once it was clear that Obamacare would meet its ultimate fate at One First Street, many of those same commentators felt that it was almost inconceivable that the Court would overturn the legislation. My favorite example in support of this basic premise occured when Harvard professor Charles Fried, a former Reagan appointee no less, declared on Fox News Channel that he would eat his kangaroo hat if the law were struck down.

Of course now that the arguments have been heard, it is quite clear that there is a split among the justices, and that there is a very good chance that certain parts of the legislation will be scrapped. And, as the Obama administration has often reminded Americans, taking away a leg or two of the bill will likely make the whole table collapse. Therefore, even if only enough votes can be cobbled together to overturn, say, the individual mandate, (and in the absence of a severability clause) it would appear that the whole bill would be junked.

Not surprisingly, and like the initial vote on the legislation itself, the split noted above has occured tightly along party lines. Now, I should probably clarify that 'not surprisingly' to read 'not surprisingly to me.' While I am no constitutional law scholar (there are several law school professors who would vouch for that statement), it was always clear to me that, if Obamacare made it to the Supreme Court, that this very scenario would play out.

Why? Because it always does, particularly in the most high profile cases. That the Supreme Court is impartial in political cases is a conceit that has been developed by some without accounting for the lessons of history. There is a reason that perpetual swinger Justice Kennedy is often the most important man in the room, why opposition parties fight tooth and nail against opposite party presidential appointees to the bench, why political schemers are always listening for any clues tipping off when one of the older justices might hang up their robes. The justices are incredibly political, and this is often reflected in their opinions.

Now, this isn't to say that they are all playing outside the rules or that they somehow all become free and loose with the law once they receive their lifetime appointments. To the contrary, they were picked for the very reason that they do have opinions. Typically those opinions reflect those of the sitting president, and therefore, at least a rough plurality of society at the time. Indeed their ability to reflect some community standards in laws is an incredible benefit.

This isn't, of course, always a perfect system. The ends of judge's terms typically lag far behind the ends of the terms of the president who appoint them. And justices sometimes 'go rogue' and end up not being as reliable a vote as their appointers intended. However, these are often seen as benefits as well.

Additionally, some readers might consider judicial independence, strict construction and other catch-phrases in thinking that my logic doesn't hold water, that politics doesn't play into judicial decision-making. However, the proof is in the pudding.

Perfect or not, it is our system, and it must be understood and even accepted that political beliefs play heavily into its outcomes. The only surprise that came from the halls of the Supreme Court this week wasn't that its inhabitants were so divided on the healthcare law. It is that anyone was surprised about it.

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