US Supreme Court on trial: Has it become too powerful for the good of the country?

Out of America: The nation awaits rulings on equal marriage and Obamacare, but are the nine judges over-reaching themselves?

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The Independent Online

This is the season of the United States Supreme Court. Its spell in the media sun doesn’t last long – just the two or three weeks before its judicial term ends on 30 June. But over that short period, on Mondays and Thursdays, the justices hand down their most keenly awaited rulings.

This year there are a couple of real blockbusters, which could be delivered as soon as Monday. One could turn gay marriage into a constitutional right, meaning that every state has to permit it. The other could rip the heart out of Barack Obama’s healthcare reform, the crowning achievement of his presidency.

The Supreme Court, enshrined as one of three “co-equal” branches of government, along with the Presidency and Congress, and embodied by its nine black-robed members, is the model for such institutions around the globe: supposedly impartial and unaligned, the guarantor of a constitution that binds America’s political system to the rule of law. But is it – or has it become too powerful for the good of the country?

In fact, the constitution gives the court relatively short shrift. By far its longest section is Article 1, enumerating the powers of Congress. Then comes the executive branch, the presidency, and finally the judiciary whose role is spelt out in four bare paragraphs. Congress was clearly intended by the Founding Fathers to be central political institution of the United States. But how times have changed.

Power has long been seeping out of Congress into the presidency, today indisputably first among the co-equals. But more recently, hyper-partisanship and general dysfunction on Capitol Hill have seen more of that power pass in practice to the court, now, just as indisputably, the second most influential branch of government.

If you don’t believe me, just consider this. Since 2010, the Republican-controlled House of Representatives has voted nearly 60 times to abolish the detested Obamacare, but to no avail. Some time in the next eight days, the Supreme Court could do so with a single ruling, upholding a lower court decision that would deprive six million lower-income Americans of the federal subsidies that allow them to purchase health insurance. Indeed, it could have done so three years ago when only the surprise deciding vote of Chief Justice John Roberts – normally part of the court’s 5-4 conservative majority – prevented the law from being declared unconstitutional. Supporters of the law are praying the same happens this time. But there’s no guarantee it will.

 Then there’s same-sex marriage, an issue – like abortion – that you may think should be settled by voters, not the courts. But Congress and the states are bitterly divided on the question, even though a majority of Americans are in favour. So as in the case of abortion, judges and not the people will decide whether gay marriage is a constitutional right, applicable in every state.

So not surprisingly, every public utterance by the justices are minutely studied for possible clues as to how he or she might rule on these momentous matters. And equally unsurprisingly, these supposedly stern and aloof figures, who have such an influence on peoples’ ordinary lives, have turned into public celebrities.

One reason is their distinctly light workload, at least by historical standards. Once the court would take up 200 or 300 cases each session; now it’s barely a third of that. So the justices have time on their hands for public appearances, the number of which have accordingly rocketed in recent years.

The entertainment industry has got the message too. Justice Antonin Scalia, quote-monger of the right and fire-breathing scourge of lefties, was subject this year of a play (terrific, by the way), called The Originalist – the title reflecting his view of the US constitution as akin to the tablets from the mount, a document set in stone whose words must be literally interpreted, according to how they were written. This autumn a comic opera is due to open, featuring Scalia and Ruth Bader Ginsburg, his liberal foil on the court. Ginsburg herself will soon be the subject of a biopic starring Natalie Portman. There’s even talk she might get her own Ben and Jerry’s ice cream flavour.

But celebrity, allied with America’s failing system of government, raises its own questions. Is it right that the least democratic arm of government should have such sway, above all at the expense of a Congress whose members are elected every two years (or six, in the case of senators)? The justices have no such worries. They’re nominated by the president, and once confirmed by the Senate, they’ve got a job for life, barring some scandal that warrants impeachment.

Some have served 35 years or more – so small wonder the increasing calls for reform, above all for term limits. One proposal is for a justice to be limited to a single 18-year term, that would mean a vacancy on the Court every two years, offering every president the chance to make at least one nomination. Therein however lies the rub.

The most damning criticism of the court is that it is too ideological, too political, that its members reflect the views of the president who appointed them. The conservative majority handed George W Bush the White House after the deadlocked 2000 election. If the liberals had had a majority, who doubts there would have been a President Al Gore? Ditto the notorious Citizens United ruling of 2010, which threw open campaign funding to the biggest bucks. Under a liberal majority, that would never have happened.

All this explains why, for many party activists on both sides, the biggest prize in next year’s presidential election is the right of the winner to name Supreme Court justices (provided someone retires, that is). In the meantime though, there are the smaller considerations of gay marriage and the fate of the biggest reform of the US health care system in half a century.

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