Has anyone here heard of the Affordable Care Act? It’s just a minor little piece of legislation that makes sure every American citizen has healthcare coverage. Also going under the moniker “Obamacare”, the Affordable Care Act is currently in the legal limbo land that is the Supreme Court of the United States. Bills that have been signed into law can either be deemed constitutional or un-constitutional in this magical realm ruled by the nine.
It sometimes comes as a bit of a surprise to people unfamiliar with the Supreme Court’s unrivalled power that, as a branch, it can be more influential that a President and all the members of Congress. Try not to be disturbed by the fact that the fate of one of the most powerful democratic nations in the world can be decided by nine individuals none of us elected.
In the past, the idea that the Supreme Court isn’t elected has been a good thing. Public opinion shouldn’t be influencing interpretations of the Constitution, that seems common sense. Back in the 1960’s when Brown v. The Board of Education of Topeka, Kansas reached the Supreme Court, the African American population probably would have been a little miffed if public opinion had swayed the court. Through out the years the Supreme Court has had to make some pretty tough calls on some pretty tough issues, and the last thing they need are a bunch of people threatening to run against them in another election if they make a call they don’t like.
But now we have a very different kind of Supreme Court. The Supreme Court of the 1960’s was on the forefront of progressive legal thinking, putting equality and liberty before all other things when interpreting the Constitution. Today we have a number of “Originalists” who have been put in place on the court to reverse progressive laws by deeming them unconstitutional. The “Originalist” approach dictates that one must determine what the founding fathers would have ruled if they were alive today. This approach runs into two major issues:
- The Founding Fathers were not omnipotent nor were they of one mind on the issues that they dealt with back in their day.
- The Founding Fathers are actually not alive today.
These are issues because the “Originalists” on the court, most notably Clarence Thomas and Antonin Scalia, believe that their approach is the only correct approach, and when they are faced with an issue that the Founding Fathers never dealt with, they will make a decision on whatever they feel like and then tell everyone that the Founders would have agreed with them. And there is nothing anyone can do about it.
So what happens when there is an “Originalist” Supreme Court Justice who already has an interest in the outcome of the case, even if it’s not Constitutional? Couldn’t they easily make a ruling that is in their best interest and then claim that it’s what the Founding Fathers would have wanted even if it wasn’t?
It just so happens that Clarence Thomas’s wife is an outspoken advocate against the new healthcare law. She has received over one million dollars from organizations supporting the reversal of the healthcare law. Clarence Thomas was also appointed by a member of the opposing party to our current President who put the law together. Clarence Thomas has a family, financial, and political interest in the case of the Affordable Care Act. (The last interest can probably be excluded due to the fact that there is likely no one in America who doesn’t have political interest in the Affordable Care Act.) But despite these things, Clarence Thomas has assured the American people that he can rule on whether the law is constitutional or not without any bias.
Supreme Court Justices can recuse themselves from a case if there is reason to believe that they may be influenced from outside factors like money or family interests, etc. But Clarence Thomas is still going to rule on this one ladies and gentlemen, because the Founding Fathers believed in corrupt justice.