Listening to liberal pundits these days could leave a person believing that the Supreme Court is venturing into new and dangerous territory. Apparently, most sitting justices have dispensed with their roles as impartial arbiters of justice, and instead have taken it upon themselves to serve as an arm of the Republican Party. Naturally, such naked partisanship is undermining the court’s legitimacy and threatening our democracy.
While the liberals making this argument are completely sincere, it would be easy for any casual news watcher to confuse the argument with parody. After all, it is the left that is constantly pursuing its political agenda through the courts, arguing that the Constitution should be interpreted as a “living document.” That is to say, liberals believe that an ever-changing society can give rise to new rights and laws under the Constitution. No amendment to the Constitution or congressional legislation is needed to create these new rights; all that is needed are enough justices to interpret these rights into the Constitution. For some reason or another, liberals have always felt strongly that having unelected justices create new laws is perfectly democratic.
Of course the media saw no problems with the court issuing politically contentious rulings, so long as the decisions were liberal. But after the court’s ruling in Citizens United v. Federal Election Commission, the media’s attitude toward the Supreme Court started to change. For those not keeping score at home, in Citizens United the court ruled that the First Amendment prohibits the government from restricting political contributions by unions and corporations. Recognizing that this ruling puts the Democratic Party at a fundraising disadvantage, liberals have made protesting Citizen United their cause célèbre for the past two years. The president himself got in the act during his 2010 State of the Union Address when, in front of an audience that included several Supreme Court justices, he admonished the court for its Citizens United decision. At the time, the move was largely seen as unprecedented, but it has since paved the way for a broader effort by liberals to attack the court’s legitimacy.
And if the ruling in Citizens United wasn’t already too much for Democrats to bear, this week the Supreme Court will rule on the constitutionality of Obamacare. In anticipation of the court striking down the law, liberal writers and pundits have come out in full force to report on the Supreme Court’s “legitimacy crisis.” According to these pundits, a ruling against Obamacare would be a pill too big for the country to swallow and ultimately cause the American public to lose faith in the Supreme Court as an institution compatible with democracy.
Pushing the legitimacy crisis theme, The Atlantic’s James Fallows writes that “the Roberts majority is barreling ahead without regard for the norms, and it is taking the court’s legitimacy with it.” You see, as long the court is creating new rights out of whole cloth to advance a liberal agenda, that’s fine. But by issuing rulings that upset liberals, the court is violating unspoken (and previously non-existing) “norms.”
Similarly, The New Republic ran an editorial warning the Supreme Court justices that “the reputation of [their] institution hangs in the balance.” And I’ll let you guess for yourself which potential outcome of the Obamacare case they believe will harm the Supreme Court’s reputation. Unsurprisingly, The New York Times, not wanting to be left out of reporting on the Legitimacy Crisis, ran its own editorial, which, quoting Justice Sonia Sotomayor, noted that “the majority breaks [its] own rules and, more importantly, disregards principles of judicial restraint.”
Leaving aside the difference between interpreting long-existing laws — such as the Commerce Clause and the First Amendment — and finding all new categories of rights which had never before existed, it looks like the mainstream media has suddenly found it worthwhile to advocate for judicial restraint. Of course, their calls for deferring to the democratic process would ring a little less hollow had they spoken up at any of the previous instances when liberals bypassed the democratic process by pushing their desired policies through the courts.
In any case, given the Supreme Court’s long history of issuing highly unpopular rulings that have infuriated many people on both sides of the political aisle, it’s hard to imagine that striking down Obamacare will deliver a death knell to the Supreme Court’s legitimacy. In fact, it would probably be one the court’s more popular recent decisions.
When liberal media outlets warn that the Supreme Court’s reputation hangs in the balance, what they are really saying that is that they will initiate an intense media-wide campaign to discredit the court if it strikes down Obamacare. It’s more of a threat than a prediction.
Mendy Finkel is a corporate attorney practicing in New York. He is a graduate of Columbia Law School.