ANDER Hamilton, the US Founding Father, described the judicial branch of government as the “least dangerous to the political rights of the Constitution,” because it “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society.” With the Supreme Court expected to rule today on a key aspect of the President’s landmark health care reforms, it’s safe to say that at least one side of the political spectrum will have a bone of contention with Hamilton’s observation.
The Supreme Court’s ruling on the Affordable Care Act’s individual mandate, which plans to compel every American to purchase health insurance, certainly makes for a grand legal finale. In the past week, the court has riled the progressive movement by striking down campaign finance limits in Montana, as well as upholding the so-called “show me your papers” section of Arizona’s controversial immigration law. However, these protestations will be miniscule compared to the ire if, as expected, Chief Justice John Roberts issues a majority opinion that rules unconstitutional Barack Obama’s healthcare plans.
The legacy of the Chief Justice is not the only issue at play here. In his first year of office, President Obama expended all of his political capital to pass what is still a deeply unpopular piece of legislation. It also happens to be the reform his base holds most dear. If overturned, Obama will have to defend his health care reforms and pledge to have yet another go in his second term. But 72 per cent of independents, who now make up a plurality of the electorate, want to see the individual mandate struck down; voters overwhelmingly believe it to be unconstitutional. The President has stated that the American people don’t want to revisit the issue. In truth, they never wanted to visit it in the first place.
Whereas the President’s supporters will want retribution against the Supreme Court and to encourage Democrats to rail against “far right-wing” justices, Obama would be best advised to temper his rhetoric towards the judiciary, because of the public’s expectation of presidential decorum. In addition, a president who has just invoked executive privilege, amid a congressional investigation into his attorney general, will find it difficult to lecture others about the separation of powers.
Although polls indicate the belief that the court has too much power, the judiciary is not like Congress – held in contempt by the majority of the population. Democrats who believe that they can reap the electoral benefits of kicking around Justice Roberts and co will be in for an unpleasant surprise. Americans may not approve of all of their rulings but, in the words of former justice Louis Brandeis, the justices are still revered because “they are almost the only people in Washington who do their own work.”
Ewan Watt is a Washington DC-based consultant. You can follow him on @ewancwatt.