Too many Supreme Court decisions not about the law

by Eric Segall, Georgetown University law professor, published in News and Observer, January 23, 2014.

Rarely in American history has the Supreme Court been called on to decide so many important social, legal and political issues in such a relatively brief period of time.

This term, the court will hand down decisions on affirmative action, campaign finance reform, free speech and the separation of church and state. At the same time, the lower courts are struggling with new and aggressive abortion laws, same-sex marriage restrictions at the state level and yet more church/state issues that could have important consequences for President Obama’s Affordable Care Act, even as more constitutional challenges to that legislation are headed toward the high court. And all of this comes after the hugely important last week of the 2013 term in which the court struck down the Defense of Marriage Act and a key section of the Voting Rights Act.

It is against this backdrop that recent comments of Georgetown University law professor Randy Barnett, the architect of the litigation strategy that almost took down Obamacare, should be required viewing by all.

In an event publicizing a new book on that litigation, Barnett said it is vital to view three questions as separate and distinct issues when discussing whether laws violate the Constitution: Does the law violate the text or original meaning of the Constitution? Does the law violate the Supreme Court’s prior cases interpreting the Constitution? And are there five votes on the court to strike down the law?

He believes each issue is independent. In other words, having five votes to strike down a law does not necessarily mean the law violates the Constitution.

One need look no further than Barnett’s case against the health care law to see that he is right. One of the central issues in the case was whether Congress had the power to require Americans to buy health insurance. As soon as the law was passed, Barnett and other conservatives began strategizing by holding meetings, writing blogs and appearing in the media as often as possible. They changed the debate, helping convince five justices of the high court that a law comprehensively regulating a trillion-dollar industry (the buying and selling of health care and health insurance) that affects every single state was somehow not a law regulating “commerce among the states.”

If it is true, as Justice William Brennan used to tell his law clerks, that the most important thing to know about the court is the number five – that with five votes, anything is possible – then perhaps it is time to seriously reconsider a political system in which five life-tenured, politically unaccountable judges have the final say on so many of our most pressing problems.

In 2011 and 2012, the five most conservative justices invalidated campaign finance laws in Arizona and Montana on the constitutionally dubious grounds that corporations have the same rights as people to spend money on state and local elections (despite the states’ rights rhetoric these justices often espouse). And in 2013, they struck down a key aspect of a major civil rights law passed by a unanimous Senate (just a few years before) and signed by a Republican president.

The idea behind judicial review was that judges would invalidate those laws that conflicted with our paramount law – the Constitution. But if getting five votes is what it is all about, wouldn’t it be better to just create a council of wise people composed of our best and brightest to make those decisions, many of whom would not be lawyers? If we are looking for the best answers, because the Constitution and prior law don’t really count and it is all about getting five votes, why would we turn to five lawyers to solve our society’s most difficult problems?

Alexander Hamilton, the Founding Father who thought the most about judicial review, had the right answer to that question, though his solution has been relegated to the dustbin of history. He said judges should overturn a law only when there was an “irreconcilable variance” between the law and the Constitution. If five justices had to assert that principle before invalidating campaign finance laws, voting rights laws and abortion laws, we would have a system in which law really matters and the number five wouldn’t be as sacred.

In Hamilton’s world, it makes sense to have lawyers and judges, who understand burdens of proof and issues of deference better than most people, to articulate principled limitations on governmental power based on prior text and law. Two prominent court of appeals judges, J. Harvie Wilkinson III and Richard A. Posner, have for years urged the high court to adopt this kind of deferential judicial review.

The more Americans learn about how the justices really decide cases, the more they may argue for greater court transparency. They could demand that the court’s proceedings be televised and also insist that nominees be pressed harder to answer tough questions during the confirmation process. After all, if getting to five votes is more about values than law, why shouldn’t the justices be treated more like other governmental officials?

I’m not suggesting that putting a greater spotlight on the court would necessarily change how the justices decide cases, but it would be a start. Until something significant changes, the number five, not the law, will continue to reign supreme.