Commentary
Independence Day: Time also to
celebrate fair and impartial courts
Matt Claman | Jul 04, 2012
On the Fourth of July, we celebrate the many great traditions of our democracy and the people who
fought for independence. One critical feature of American democracy that our forefathers fought to
protect is a fair and impartial judiciary. Last week’s decision by the U.S. Supreme Court affirming the
Affordable Care Act (ACA) reminds us, as a nation, that we have an independent judiciary and how
important maintaining fair and impartial courts is.
While his support for Congress’s power to pass
the law was a surprise to many, Chief Justice
Roberts established his leadership of the Supreme
Court by writing the Court’s majority opinion.
The Court found that the ACA’s individual
mandate is a tax and that Congress has the power
to enact a national health care law.
A learned history professor often remarked
that “there are no simple solutions to complex
problems,” and the national health care debate
illustrates that complexity. The Affordable
Health Care Act was over 2,700 pages, and
most senators and members of Congress probably did not reach every page. Even the opinions in
National Federation of Independent Business v. Sebelius are over 100 pages, but most senators and
members of Congress probably will not read all of them either. In contrast, the nine Justices on our
Supreme Court have studied the ACA with the precision required to render an articulate decision on
such a complex topic.
Constitutional scholar and law school dean Erwin Chemerinsky has frequently described the current
Supreme Court as the “Kennedy” Court because Justice Anthony Kennedy has often been the swing vote
in the most ideologically divided decisions.
Indeed, Justice Kennedy authored the Court’s opinion in the controversial Citizens United v.
Federal Election Commission decision, in which the Court rejected limits on campaign spending by
corporations. In writing the majority opinion in the health care case, a case that may be one of the
defining decisions by the Supreme Court for many years to come, Chief Justice Roberts took a major
step to establish his identity as the leader of the Court. For its impact on a major sector of our economy,
the health care decision may have greater impact than campaign contributions.
The Supreme Court has a rich and diverse history as a fair and impartial voice in our system of
government. While presidents, governors, and legislators have complained when the Court exercises its
power contrary to the political winds of the day, most have come to treasure its independence. While
Barack Obama is our 43rd president, John Roberts is only our 17th Chief Justice.
In his opinion, the Chief Justice relied on two historic opinions that establish the role of the third
branch of government and the power of Congress. In Marbury v. Madison (1803), the Court
established the doctrine of judicial review and declared: “It is emphatically the province and duty
of the judicial department to say what the law is.” And in McCulloch v. Maryland (1819), the Court
explained that the Constitution gives the federal government certain implied powers. As Chief Justice
Marshall remarked in McCulloch, “the question respecting the extent of the powers actually granted
is perpetually arising, and will probably continue to arise so long as our system shall exist.” Because
the lawsuit challenged Congress’s power to enact the Affordable Health Care Act, it is no surprise that
Chief Justice Roberts relied on “the basic principles” articulated in Marbury, McCulloch, and other
early cases to support his decision.
The question that Americans on all sides of the political spectrum are asking themselves on this
Independence Day is why the more conservative Chief Justice allied himself with the more liberal
justices in deciding the health care case. The answer lies in the history of the Supreme Court as an
independent voice, the impact of the Court’s past decisions on its current members, and the complexity
of the health care debate.
Supreme Court Justices are students of history, having shown their skill at reading and writing about
the prior decisions of the Court. Once appointed to the Court, they change from being observers of that
history to being the chief participants making the history. Justices are often less willing to overrule prior
decisions once they are serving on the Court. For example, the infamous Dred Scott decision remained
the law of the land for decades before it was finally overruled by a unanimous Supreme Court in Brown
v. Board of Education. Justices are appointed for life, as required by the Constitution, and they evolve
during their careers on the Court. The Constitution, itself, is their most common reference; and the
powers of Congress, of the president, and of the courts are often on their mind.
In reflecting on the decision, Chief Justice Roberts likely pondered whether the Court should move
dramatically away from prior decisions, dating back to the Great Depression and earlier, about
the power of Congress and the president. During the Great Depression, a divided Supreme Court
questioned Congress’s power to enact national legislation and the Court’s authority to limit that power.
In the 1930s, the Court ultimately recognized Congress’s right to enact controversial legislation. Chief
Justice Roberts was aware that a decision to reject Congress’s power to enact the national health care
legislation would call into question many prior decisions of the Court. The decision rejecting Congress’s
power to compel interstate commerce and affirming Congress’s power to tax reflects an interest in
recognizing Congress’s power consistent with the Court’s precedent.
Finally, the Chief Justice understood that our nation has developed an increasingly complex system
of laws and regulations that are grounded on decisions of the Court. Those prior decisions recognized
Congress’s authority to enact laws. The Affordable Health Care Act impacts patients, doctors, insurance
companies, large businesses, small businesses, states, counties, and cities. The Court’s decision
recognizes that Congress is the best-qualified branch of our government to address these complex
questions of public policy. And it recognizes that the Court is best-qualified to address the power of
Congress to take action – not the wisdom of Congress’s action. And so the Chief Justice concluded:
The Framers created a Federal Government of limited powers, and assigned to this Court the
duty of enforcing those limits. The Court does so today. But the Court does not express any
opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is
reserved to the people.
The Supreme Court’s decision finding that Congress has the power to enact the Affordable Health Care
Act demonstrates the importance of fair and impartial courts. It resolved the question of Congress’s power
to enact the legislation – the question that it needed to resolve. The Court did not resolve the questions
about the wisdom of the legislation. Those questions are best resolved in the public square and in the halls
of Congress. Just as we celebrate American independence in our homes, in the public square, and in the
halls of Congress. In its decision, the Court protected the public’s right – in this generation and future
generations – to debate health care and many other issues that will continue to challenge our nation.
As we celebrate our nation’s independence, we can also celebrate our tradition of fair and impartial courts.
Matt Claman is an attorney with Lane Powell, is a former Anchorage Assembly member, and served as
mayor of Anchorage in 2009.
The views expressed here are the writer’s own and are not necessarily endorsed by Alaska Dispatch. Alaska Dispatch welcomes
a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com.
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