The ACA, Citizens United, and Unfair Public Perception of the Supreme Court
I’m thrilled to be guest blogging for Concurring Opinions for July. By mid-month, I’ll post a draft of a recently completed article on quantifying probable cause, a topic inspired by my April guest blogging stint. In the meantime, I’d like to add my reaction to Thursday’s epic Supreme Court decision upholding the Affordable Care Act, with a focus on judicial legitimacy.
I am quite pleased with the commentary on the Supreme Court’s Affordable Care Act decision, from commentators on
the left and on the right. I am greatly disturbed, however, by the intractable cynicism about the Supreme Court that has gripped the public. The belief that Justices decide cases largely due to their own politics, I submit, actually enables Justices to do so, leading to a vicious cycle.
The attached poster, which has been circulated widely, urges voters to re-elect President Obama so that the Supreme Court can overturn Citizens United, which invalidated laws restricting the ability of corporations, nonprofits, and unions to engage in certain forms of political advocacy during elections. Whatever your opinion of Citizens United, reducing that case’s holding to a three-word declaration that “corporations are people” is simplistic and misleading. Citizens United refused to allow corporate expenditures on speech to be hampered based on the identity (or corporate status) of the speaker. Even Justice Stevens’ dissent acknowledged that corporations receive First Amendment protections in certain situations. The poster’s results-oriented, un-nuanced view of the case is irresponsible.
I could dismiss the poster as political pandering, but “corporations are people” seems to be what a significant portion of the public thinks that Citizens United decided. They also believe it was decided this way based on five Justices’ favoritism of corporations and antipathy towards campaign finance reform. I believe that the media is partially to blame for the public’s conflation of the results of a case with the political biases of the Justices. Articles discussing politically-charged Supreme Court cases often attribute the outcome of a case to the Justices as if the reasoning/procedural posture is secondary, and as if no Justice ever voted to invalidate a statute that he favored or uphold a statute that she abhorred. Just look at United States v. Alvarez, issued on the same day as the Affordable Care Act was deemed a tax. Surely six Justices are not in favor of individuals falsely claiming to be decorated soldiers, yet they invalidated a statute criminalizing such lies.
When the public believes that Justices vote based on their political views, people essentially give up on rule of law, and in turn encourage Justices who agree with their politics to do the same. When Justices are accountable to the results of a decision, instead of its reasoning, they worry more about the result than of the process of comparing a statute with a principled reading of the Constitution. The public’s cynicism about the Court has dangerous implications.
Of course, in close cases, a judge’s personal biases and approach unavoidably enter into the equation. But those personal biases generally exist on an abstract level – as in, the First Amendment should be interpreted broadly, or, the Fourteenth Amendment should be read textually, or even, the Constitution largely protects privacy rights, or property rights – and very rarely take the form of a crude results-oriented decision that any individual case should come out a certain way. I know this happens sometimes (certainly Bush v. Gore springs to mind). But, the more abstract a judge’s jurisprudential approach, even if that approach has been informed by her politics, the more likely she will rule in a way that contradicts her politics in specific cases, and the less she becomes a naked political actor.
After last week’s decision, I am left wondering how much public opinion should affect Supreme Court verdicts. On the one hand, incorporating public opinion prevents the Justices from straying too far from our country’s values. Landmark decisions like Brown v. Board and Lawrence v. Texas had to wait until some significant segment of the populace supported integration and gay rights, respectively. On the other hand, a major reason for judicial review is to protect the public from its own, democratically-enacted laws that, while seeming appropriate, trespass against greater values when viewed in the abstract. And certainly, the public’s anger at the Supreme Court over a result, instead of over fallacious or unprincipled reasoning, should not carry the day.
If Justice Roberts bowed to President Obama’s pressure and public opinion in upholding the ACA, as some commentators suggest, then the Chief Justice maintained some appearance of legitimacy for the Court at the expense of its actual legitimacy. True legitimacy requires deeper interactions between the Court and the public over what is animating Supreme Court decisions.