Watching the debate unfold surrounding the Supreme Court’s hearing on the Affordable Care Act has been both disappointing and laughable. Pundits from both sides have cried foul as it is clear (Surprise! Surprise!) that essentially eight of the nine justices had already made up their minds on the issue before it had been brought to their courtroom. It’s laughable to hear these arguments, particularly since we brought this on ourselves.
Whenever it is time to appoint a new justice to the highest bench in the land everyone knows what they want. We want our guy/gal. We want the person that will make decisions in the interest of our party’s values and nothing else. We don’t want someone who might just be seen as a moderate and who’s judgement might swing either way (presumably in the way of an objective, Constitutionally-sound decision) on critical cases. And when we get what we want, we get the horrible arrangement we have now. One party appoints a clearly partisan judge to replace a less partisan one. The other party reacts by appointing someone even more partisan on their side. And so on and so on until we don’t even need to hear the decisions of eight of the justices. We only pay attention to one. At the moment, that judge is Justice Kennedy.
It now rests on one man’s shoulders to decide the fate of the health care reform. One man voting for 300 million. A tough job no doubt but we know that is what the Supreme Court is for whether their decisions are good or bad. Not that nine justices voting for that many people sounds much better but we got what we wanted in our partisan judges and now pundits have been taking turns firing shots at the opposing justices as if the ones they support aren’t equally guilty of seemingly biased decision-making. If a president were to take the high road and actually appoint an apparently unbiased justice, these pundits would scold their own guy sitting in the Oval Office. Therefore, the anger being shown now is just humorous and I actually question how genuine it is. They are aware of how this came about and I can only assume most of these partisans just say the provocative thing because it’s expected.
This case has also been disappointing to watch by throwing the reality in our faces that we only have one swing vote on the court any time a controversial issue with partisan undertones comes before them. One swing vote. Just in case you aren’t counting, we should have nine of those on the Supreme Court. People have argued Elena Kagan should recuse herself from this case because a previous meeting might have influenced her and helped make her decision before the case was brought to the court. I have an idea. Maybe we should have every justice not named Kennedy recuse themselves so this gets done quicker. Think of how much time could be saved by just having him ask the questions he wants answers to on cases like this and only hearing his decision. Three days of questions could have been dwindled down to a half day with the rest of the time devoted to dragging out other issues for no reason. We could speed up democracy! I’m kidding, of course, but you get the point.
All that said, is it even fair for pundits to criticize the judges they don’t agree with at this point when they were a big part of creating this situation? Judge for yourself. But another question looms stemming from all this that might be more important than the eventual decision handed down by this court on the individual mandate. And that question is this: What happens when Kennedy retires? Will we even get one “swing vote” anymore? Will we forever be doomed to 5-4 decisions in favor of only one party? Will each party takes turns ramming cases through the Supreme Court to switch decisions on controversial issues every time the majority on the court changes? To avoid this awful scenario, we can only hope for something we were promised by the last candidate voted into the Oval Office: change.