Umpire of liberty

In addition to its polarised Congress, America has a polarised Supreme Court

AT FIRST blush it is magnificent. Behind the neoclassical columns of the Supreme Court this week, the nine supreme justices of a nation of laws—not men, you understand—convened for a solemn hearing of the arguments for and against striking down the most far-reaching social legislation Congress has enacted for decades. A main provision of the Patient Protection and Affordable Care Act, nicknamed “Obamacare”, obliges Americans, on pain of a fine, to buy health insurance. But this, remember, is America. By what right does the federal government impose such a requirement on free people in states with their own administrations? Where does the constitution empower mere legislators to compel citizens to buy something they do not want?

And what better way, when such questions arise, than to entrust the answer to nine upstanding judges, appointed for life and therefore impervious to subornation or political interference? These, moreover, are modest men and women—or so the present chief justice, John Roberts, told the Senate at his appointment hearing in 2005. He had no “agenda” or “platform”, he said. Judges were not politicians, “who can promise to do certain things in exchange for votes”. They were like umpires, applying rules they did not make themselves. It was a vital role, but a limited one: “Nobody ever went to a ball game to see the umpire.”
Such is the conceit that undergirds not only the Supreme Court but also, by extension, the doctrine of the separation of powers upon which the American polity stands. What a pity that it is mostly fiction. These judges are far from being humble umpires applying simple rules. Sometimes they have to work out whether a rule exists at all, and what it means if it does. Nor are they desiccated calculating machines, meting out dispassionate justice uninfluenced by political ideas. Since they are made of flesh and blood, one judge’s “jurisprudence” is another’s “bias”. That is why appointing a sympathetic judge to the Supreme Court for life has long been the surest way for a president to leave a lasting imprint on America.

The judges themselves are often willing accomplices in the politicisation of the court. Consider the retirement in 2010 of Justice John Paul Stevens, at the age of 90. He did not go because he wanted to play more tennis. By all accounts his legal brain remained as sharp as a pin. But by retiring when he did he gave a president he happened to admire a chance to replace him with a like-minded successor. Barack Obama duly did so by appointing Elena Kagan. She joined his previous appointee, Sonia Sotomayor, and two other judges, Stephen Breyer and Ruth Bader Ginsburg, who form the liberal wing of the court. Opposite them on the conservative wing are Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice Roberts himself.

Is it fair to apply such crude labels as “liberal” and “conservative” to subtle legal minds whose owners claim to be weighing each case on its merits? Alas, yes. Academic studies confirm that when the court is divided, the liberal or conservative predisposition the judges is a fair indicator of how their votes will go.

Sometimes, admittedly, judges move along the spectrum during their career. Mr Stevens ended up a liberal but was appointed by Gerald Ford, a Republican, at a time when he thought of himself as a Republican too. Although she was appointed by Ronald Reagan, Sandra Day O’Connor, the first woman on the court, turned out to be a more flexible Republican than some conservatives wanted. Her willingness to side with the liberals on social issues made her the court’s swing voter until she retired in 2006.

A court with too few swingers

The swing voter on the present court is Anthony Kennedy, also a Reagan appointee, but one who sometimes votes with the liberal wing, so prompting fans to enthuse about his open mind and critics to grumble about his inconsistency. This flexibility gives him special influence—so much so that Justice Roberts’s court is often called the “Kennedy court”, to reflect the importance of the tie-breaker. How he will vote on Mr Obama’s health-care bill nobody can say, though this has not deterred a flock of pundits from embarking on a feverish dissection of his previous opinions and his questions this week in search of clues. Justice Roberts was wrong to say that nobody ever went to a ball game to see the umpire. The crowds who thronged the court this week acted just like game fans, chanting for their rival teams.

Umpires indeed. The Roberts court is conservative and continues to change America according to the balance of ideology on the bench, much as the activist court of Earl Warren pushed in the opposite direction half a century ago. In the Citizens United ruling two years ago, the court made a broad decision in a narrow case, freeing corporations and unions to spend unlimited amounts of money in elections. It has declared gun-control laws in Chicago and the District of Columbia unconstitutional.

Yet a decision to strike down Obamacare could have far more momentous consequences. When the Supreme Court intervened 11 years ago to settle the presidential election of 2000, this column noted that the public’s confidence in the court was not something to be taken for granted. The court has fallen into controversy many times before, not least when a conservative court tried to thwart Roosevelt’s New Deal.

In the case of Obamacare, it now looks unwise of the Democrats to have pushed such ambitious—and unpopular—legislation through Congress without a single Republican vote. What, though, if the flagship achievement of a Democratic president is now to be struck down by the casting vote of a single judge, in a case where legal opinion is finely divided? Magnificent, in its way, but not the most harmonious way to run a country already asking whether its governing institutions are still up to the job.