Indeed, post-hearings, things are already so worrisome for Progressives that not only are they running around trying to simultaneously grab all four cheeks – - – but they’re also trying to grab each other’s. Yesterday, left-leaning New York Times economist Paul Krugman wrote, “. . . we don’t know how this will go. but it’s hard not to feel a sense of foreboding – - – and to worry that the nation’s badly damaged faith in the Supreme Court’s ability to stand above politics is about to take another severe hit.”
Ironically, just weeks ago legal experts predicted a Supreme Court win for ‘Obamacare.’ Indeed, according to one report from the American Bar Association, the tea leaves read by 85% of so-called veteran court watchers indicated the nation’s highest court would uphold the Constitutionality of the individual mandate and of Obamacare itself. Notwithstanding that these “experts” could still be right, the tenor of the hearings nevertheless exposed the dubious reliability of such “expert” predictions. When it comes to the U.S. Supreme Court, like the results of last night’s Mega Millions lottery jackpot, you don’t know till you know.
The Myth of a Non-ideological Court.
As it now turns out, the reliably ideological 5-4 cast of the current Court personages has yet again deflated the overly optimistic predictions of supposedly savvy savants. Instead, what’s left is that same degree of helpful cheerfulness employed by schoolboys who whistle past graveyards.
What were they thinking? Weren’t these the same Progressives who had run wailing into the cobble-stoned streets sans torches and pitchforks following this Court’s rulings in Bush v. Gore and more recently, Citizens United?
And pardon my mixed metaphors, but crossing the political aisle, Progressives are so down-in-the-mouth right now that the fervent Conservatives’ counted chickens may not be prematurely dancing on the Affordable Care Act’s grave.
But rather than add more of my own equally clueless noise to the prognosticating cacophony, I’ll limit my further ruminations merely to draw attention to what’s long been obvious to legal insiders but not always to the general public, that “long ago, the legal realists exposed the myth of formalism by demonstrating the inevitability of judicial discretion” or as “any first year law student knows that judges make law constantly.” This is what constitutional law professor Erwin Chemerinksy memorably characterized as “Seeing the Emperor’s Clothes: Recognizing the Reality of Constitutional Decision Making.”
The good professor calls discretion-free judicial decision-making a “myth,” disagreeing with the supposed “fear that courts would lose legitimacy if people knew that the values of unelected jurists were the basis for decisions with direct, local impact on their lives.”
“Of Course Ideology Should Matter in Judicial Selection,” Chemerinsky further argues in yet another useful deconstruction of the mythology that’s also been challenged by such eminent law professors as Randall Kennedy and Christopher Eisgruber. I previously discussed their assessments here while also noting the recent “Poll: Many Think Justices’ Ideologies Will Affect High Court’s Health Law Decision,” revealing that: “Seventy-five percent said they think ideological beliefs influence decisions made by the Supreme Court justices, while just 17 percent think pure, nonpartisan legal analysis drives their decisions, according to the January Kaiser Health Tracking Poll.”
“We aren’t stupid.”
Justice Antonin Scalia during the hearings was referring to U.S. health care consumers when he told the suddenly oratorically M.I.A. Solicitor General Donald B. Verrilli Jr., “We aren’t stupid.” But increasingly, as the mythology of a non-ideological court is laid bare, the electorate finds itself also not stupid about innocuously described judicial ‘policy preferences.‘ Reported by “The Washington Post,” a Bloomberg News survey taken before the oral arguments found that 75 percent of Americans believe that politics will influence the justices’ decision on the health-care law.
And in no small part, thanks to talking points being promoted by liberal groups like the Center for American Progress and recapped by “The Washington Post,” it gets worse. “The story line is simple . . . the Supreme Court puts politics above the people in the name of the Constitution.”
Photo credits: “Broccoli in a dish” licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license via Wikipedia;”Gnome Moon,” by Ludie Cochrane at Flickr via Creative Commons-licensed content for noncommercial use requiring attribution and share alike distribution;Illustration “From the Dance of Death” by Michael Wolgemut (1493) in the public domain via Wikipedia; “The Whistling Boy” (1872) – Frank Duveneck(1848-1919) public domain via Wikipedia; Illustration of “The Emperor’s New Clothes” by Vilhelm Pedersen in the public domain via Wikipedia.