WORLD VIEW:THERE WERE, in President Obama's tiff with the supreme court this week, echoes of Paddy Donegan's "thundering disgrace" affair in 1976. The row over the latter's denunciation of president Cearbhall Ó Dálaigh's reference of emergency legislation to the Supreme Court led, you may remember, to the president's angry resignation.
There was the same suggestion of an impertinence in questioning democratically approved measures. The same blast from a member of the executive branch at an institution “above politics”, unable to respond. The same political storm about “bullying” independent institutions.
But in the US the relationship between executive and judiciary is not the tender plant it is in this State. The US supreme court may not enjoy it, but is well used to the robust criticism that here might attract a citation for contempt.
Take New York Times’s Maureen Dowd, a regular feature in The Irish Times, and her justifiable broadside this week against the conservative- dominated court: “This court, cossetted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern US history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the constitution.” Could an Irish paper write that of our Supreme Court, even if were true?
Obama, who taught constitutional law, has been here before. He raised a similar storm in condemning the 2010 Citizens United ruling in his 2010 State of the Union address with some of the justices present – the key ruling delighted big money by finding against curbs on political donations, arguing they were protected by free speech provisions of the constitution.
This time it was to suggest on Monday that it “would be an unprecedented, extraordinary step” for the court to overturn his landmark healthcare act, currently under review by the judges. And he pointedly noted the justices were “unelected”.
No suggestion that the court did not have the right to overturn the legislation, which it has had since 1803. But Obama and his spokesman have been forced to spend three days insisting he was merely describing precedents, not prescribing to the court.
“Since the 1930s the supreme court has, without exception, deferred to Congress when it comes to Congress’s authority to pass legislation to regulate matters of national economic importance such as healthcare,” White House spokesman Jay Carney insisted correctly.
On Tuesday, New Orleans circuit court appeals judge Jerry Smith took the unusual step during oral arguments in an unrelated case of demanding a detailed memo addressing the executive’s view of the judiciary’s power over the legislature’s acts – the separation of powers.
On Thursday, in an equally unusual three-page memo, Eric Holder, the attorney general, made clear that for the administration “the power of the courts to review the constitutionality of legislation is beyond dispute”.
At stake here is not a human rights issue, but the court’s interpretation of whether the scope of federally permissible action, established in the 1930s to regulate interstate commerce under the “commerce clause”, extends to regulating healthcare. Specifically at issue is the act’s cornerstone requirement that everyone buy health insurance, the so-called “individual mandate”. The challenge by 27 Republican state governors is targeted at the mandate because it makes it economically feasible to provide cover for all. Republicans argue requiring the purchase of insurance is not a commercial act and that, as columnist Charles Krauthamer puts it: “If Congress can force the individual into a private contract by authority of the commerce clause, what can it not force the individual to do?” Justice Antonin Scalia asked if Congress could force citizens to buy broccoli.
The essential difference, Democrats argue, lies in the nature of the healthcare market whose effective functioning, unlike that for broccoli, depends on the participation of all. Those who do not take out insurance may well end up imposing a cost on others. And they contend that there is no qualitative moral difference between “regulating” people – a form of commerce – by imposing tax on them for services such as Medicaid, or by requiring them to take out insurance
At stake is Obama’s principal domestic policy legacy in an election season – the court is expected to rule in June. Much more so than here, all of the great political debates in the US end up in the supreme court, which is why its make-up – now five to four for conservatives – is such a central, contested political issue.
Judicial activism, a willingness not just to interpret law but frame it – in essence Obama’s complaint about the court – was long the Republicans’ bête noir in the days of Democratic-sympathetic courts. Now, however, the shoe is on the other foot.