The idealistic view of the Supreme Court as a disinterested institution above politics took a hit during the recent oral argument over the Patient Protection and Affordable Care Act. Paul Krugman expressed the disquiet many Americans who idealize the court must have felt when he wrote, “The second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as anti-reform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.”
My own disillusionment with the court dates to the late 1980s when I wrote to the nine sitting justices to inquire why they never explain their reasons when they remove (recuse) themselves from cases. Six justices wrote back. I commented at the time that the replies “show that there are no consistent or persuasive reasons” for the secrecy. Nevertheless, to this day, the justices do as they please about sitting on cases and are mum about their reasons for recusal.
One of the marvels about the U.S. political system is how Americans voluntarily bow to the high court’s rulings as the law of the land. That they do so in large measure is a tribute to the respect Americans have for the nation’s highest court. But respect is never assured; it must be earned, repeatedly. If the high court gives the country reason to believe that its rulings are inconsistent or politically driven, respect for the court will plummet.
So more than the Affordable Care Act is on trial these days. The high court itself is. The sense of foreboding Paul Krugman described as the country awaits the court’s decision is as much for the court as for the act.
The law touches the lives of almost every American. The justices must be aware that a politically-tinged decision simply is not affordable either for the country or the court.
The reasons I was given for the judicial silence about recusal simply are not tenable. My feelings about the high court nosedived when I read the responses and realized how deeply human—and flawed—are the justices.
The high court could be the big loser, therefore, in the ruling on the Patient Protection and Affordable Care Act. It’s crucial, for the high court’s sake, for the justices to set personal preferences aside and rise above personal feelings about government’s role in health care to render an impersonal verdict so that Americans believe that justice in this case truly was done.