Politics By Other Means

The Supreme Court is a political body. Let’s not pretend otherwise.

Last week, President Obama criticized the Supreme Court for taking King v. Burwell, the latest challenge to Obamacare, which he described as an “easy case.” This single comment spurred the legal commentariat into overdrive, just as when the president criticized of the Supreme Court at the 2010 State of the Union and when Justice Alito mouthed the words “not true” in response.

Whenever there is a spat between the executive and judicial branches, pundits or commentators always want to weigh in on whether or not the exchange was somehow “inappropriate.” (Given the current division of the government, most of said pundits tend to be on Fox News or the Volokh Conspiracy).

In my view, this is a silly argument to have. Of course it is appropriate for a President to criticize the Supreme Court and for justices to criticize a president. They’re both political bodies, and that’s how politics works. The Supreme Court is not some high-and-mighty place untouched by politics; it is just another forum where politics is played out.

There are, in some senses, two Supreme Courts. On one hand, there’s the “judicial Court,” which acts as the highest-level appellate Court for federal issues. For example, one important role for the Supreme Court is to resolve disagreements between the intermediate appellate courts, just as the intermediate appellate courts resolve disagreements between the federal district courts. Many of these cases are about arcane issues of federal law; most of them are not about controversial issues, and most don’t make the news. Last year, for example, two-thirds of all cases heard by the Supreme Court were decided unanimously.

The second Supreme Court is the “political Court” — the court that sticks its nose into the thorniest political issues of the day. These issues are usually complicated enough that — from a formalist, positivist viewpoint — there is simply no “right” answer. The U.S. Constitution, with all of its amendments, is less than 8,000 words long. It simply does not answer most “constitutional” questions. The way the justices vote in constitutional cases are based on their ethical and philosophical views about democracy, liberty, and other values.

For example, in NFIB v. Sebelius, the 2012 Obamacare case, a majority of the Supreme Court held that the Commerce Clause of the Constitution did not allow Congress to force Americans to buy health insurance. Depending on how you look at it, this was a repudiation of either 75 or 193 years of Commerce Clause jurisprudence. Was this the “right” answer? Who knows? But let’s call it what it was: a political decision made by nine political actors, made based on their political values.

An even more stark illustration of this point is this year’s Obamacare case, King v. Burwell. The King case does not even raise any constitutional issues. It is — as President Obama said — an easy case of statutory interpretation that should come out in favor of the government. It’s not even a real case. It’s a manufactured lawsuit, paid for by the libertarian Competitive Enterprise Institute, and brought in the name of sham plaintiffs who had to be recruited and may not even have standing. (This was after the libertarian Cato institute failed in its attempt to recruit its own interns for the case.)

But the Supreme Court has nonetheless gotten involved, and there is a very real chance that they will gut Obamacare. If they do, is there really anyone who can — with a straight face — defend it as a “legal” decision as opposed to a “political” one?

This “second” Supreme Court — the political Court — comprises nine politicians in black robes. And the sooner people understand that, the easier it will be to make sense of the Court’s actions.