Obamacare and Supreme Court Review (Part Three)

(Note:  This is the third and concluding segment in a three part series.  The first segment traced the confrontation between the executive and judicial branches to the powerful forces of conservatism to maintain and preserve the status quo.  The second segment featured examples of the confrontation in action from the archives of US History...)


In a new twist in the opposite direction of its conservative character, the Supreme Court relied on innovative readings of the constitution to resolve the disputed 2000 presidential election in favor of the more conservative candidate.  It was the first and only presidential election decided by the Supreme Court in US history.

The outcome of the election between Vice President, Al Gore (Democrat), and Texas Governor, George W. Bush (Republican), turned on a razor thin victory for Mr. Bush in the state of Florida, where his brother, Jeb, was Florida’s governor.  But the Florida Supreme Court ruled that state law required a statewide manual recount of all ballots in which a machine failed to register a vote for president.

A federal lawsuit ensued.  The five most conservative justices on the US Supreme Court issued a ruling that no more recounting could take place, explaining that the review of these ballots threatened “irreparable harm to (Mr. Bush), and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”  The dissent responded that “counting every legally cast vote cannot constitute irreparable harm.”

The conservative majority noted that the Florida Supreme Court’s failure to articulate a more specific standard for determining a legitimate vote violated the constitution.  Under a different set of circumstances it might have been possible to send the case back to the Florida Supreme Court to create a more explicit standard.  But the majority announced its belief that the state of Florida intended to resolve all disputes by the federal deadline ensuring the state's electoral college votes would not be challenged in Congress.  Since the decision was handed down on the evening of the deadline, there was no time left to count votes.

The practical effect of this decision was to declare Mr. Bush the president-elect.  Mr. Gore promptly conceded.

The dissent argued that the US Supreme Court had no business interfering in the presidential election dispute, stressing that these issues were more properly addressed by the state of Florida and then Congress, if necessary.  The dissent also emphasized that the majority's opinion was inconsistent with the previously expressed views of those justices on limited government and that the actual loser of this presidential election was “the Nation's confidence in the judge as an impartial guardian of the rule of law.”  Allegations of partisan decision were inescapable.

·            The present 2012 election year political environment, with a progressive Democratic president facing conservatism again seemingly retired into the judiciary, bares similarities with prior instances.  And so Mr. Obama’s recent sentiments expressed on the pending constitutional challenge should come as some surprise: “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

But Mr. Obama’s confidence may be little more than a product of wishful thinking.  The independence of the US Supreme Court in its decision-making methodologies is beyond question and as such strictly another matter.  Its own political labels and rigid ideologies may be discarded, even the opposition’s ideologies borrowed and reformulated for convenience.  History demonstrates that a conservative US Supreme Court is more than ready, willing and able to become judicially active, big government style.  It may even don the insipid label of the “L” word, “liberal”.  All judicial options are on the table, when it comes to crafting a result which protects the status quo in particular deference to its powerful conservative minority constituency.

President Obama has said: “I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint.  That a group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.”  The President is a popular chief executive who by his words has fired an interesting political warning shot across the bow of a conservative Supreme Court.  If the idea of an adverse ruling can be felt as a tremor, then the ramifications of an actual decision striking down the new healthcare law has the potential of a political earthquake.

-Michael D'Angelo