President Obama and his administration feel so confident in the Affordable Care Act's constitutionality that they're egging on the Supreme Court to prove them wrong. After the 11th Circuit in Atlanta ruled against the law's individual mandate in August, the administration could have asked the U.S. Court of Appeals to take up the case, possibly delaying a decision until after the elections. But they declined, meaning the final word will come from Supreme Court square in the middle of the 2012 race.
I get that Obama wants to stand his ground, but anyone who cares about both health care and the power of the legislative system should have been rooting for a delay. If Obama loses, we'll be back to square one—millions of Americans will remain uninsured, and health insurance companies will have an excuse to turn down people with pre-existing conditions. But even if the law is upheld, it still exacerbates a disheartening evil that has only gotten worse: the politicization of our country's highest court.
Again, I understand why the administration elected to move forward. Obama has a good chance of winning, which is why he's going straight to the big boys. Since the Affordable Health Care Act was passed last year, a couple smaller courts have supported the law. In June, a panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati narrowly gave the law's individual mandate a pass. Just a few weeks ago, a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond turned down a challenge to the law brought by the Commonwealth of Virginia and others.
Plus, Obama knows full well that the people's faith in the legislative process is at record lows. The debt ceiling disaster, the near-government shutdown over the budget, and the health care hoopla itself has disillusioned us in a big way. Given that Obama is desperate for legitimacy from a trusted entity, betting on the court's decision is a smart political move on his part, and it could very well work.
Regardless of the outcome, though, a political party will be dangling a Supreme Court win in front of the faces of voters come next November. That sets a nasty precedent for an already too-partisan process, and it almost makes me wish the Supreme Court didn't exist.
It may seem like I'm a cranky lefty still angry about Bush v. Gore or the Citizens United case. I am, but that's not the point. Up until a decade ago, conservatives were the ones to invoke their outrage over "legislating from the bench," and still do when the outcome doesn't suit them. Since Brown v. Board of Education in 1954, liberals have relied on the Supreme Court to push forward civil rights agendas. I'm grateful for cases like Roe v. Wade, but I still would much rather if the right to an abortion had been decided by Congress, or if the Civil Rights Act didn't need to be enforced by individual court cases. It would be one thing if Supreme Court justices had 10-year terms—long enough to gain some autonomy, yet short enough to escape becoming an elitist relic. But the idea of a group of life-long appointees with the power to undermine representatives that we've elected rubs me the wrong way, and I'm not the only one.
A little bit of history: In the 1780s, there were three wings of the revolutionary movement. The Federalists (Alexander Hamilton, John Jay) and the Anti-federalists (Thomas Jefferson, Sam Adams) are the ones we learned about in history class, but there was a third wing, a group of farmers and artisans who considered themselves radical republicans (with a lower-case "r"). This group was opposed to the parts of the constitution that called for the establishment of last-word court systems like the Supreme Court. Their grievance was simple: They didn't want a court that would overrule the legislative chamber, which is the only voice the masses have.
I'm not ready to abolish the Supreme Court quite yet, but I do wish it were less of a political football field and more of a group that interpreted the Constitution and Bill of Rights free of political influence. A Supreme Court decision certainly shouldn't be the factor that swings an election. Meanwhile, it's sad that legislators resort to the Supreme Court to restore our faith in them and convince us that their laws (or their opposition to laws) are legitimate. Isn't that what we elect our leaders to do?