The U.S. Supreme Court, Healthcare Reform and Domestic Political Peace

In sensitive cases, the ones that are destined to reshape a society and thus define a court, it seems as if the U.S. Supreme Court offers up a never-ending series of 5-4 decisions. Whether the issue is gun control, campaign finance, presidential election recounts or, soon, the fate of national healthcare reform, these decisions are almost always reached with the very same narrow majority of individuals: Justices Roberts, Scalia, Alito and Thomas, along with the “swing justice,” Anthony Kennedy.

That is a troublesome pattern. It has turned the court into a de facto political ally of the Republican Party. That is a far cry from acting as a societal balancer, as would seem highly advisable, especially under the current circumstances. As a result of this shift, the country’s people, economy and society may be in peril.

There is no denying that top courts in any country, despite all the rhetoric about judicial independence, are ultimately political institutions. And politics, broadly speaking, involves balancing the interests of contending camps of society. That is a concept which most other constitutional courts in the developed world instinctively acknowledge.

There are intriguing precedents in other major countries where the top courts, at a time of similar political dysfunctionality, stepped into the breach. For example, rather than letting political conditions deteriorate further, the German Constitutional Court in the 1980s engaged in some creative legal maneuvering.

It did so by actually setting deadlines for the politicians to pass long-disputed laws by stipulating specific conditions that would need to be met for the law to be deemed “constitutional.” This effectively forced both political camps in the parliament to meet each other half way.

The intent was to make it impossible for the gridlock that was paralyzing the entire country to continue. Given the impeccably nonpartisan authority of the German court, the required legislative deals got done in time. And the judicial guidelines allowed both political camps to cite “constitutional” requirements to explain to their supporters why they had given up their maximalist positions.

No such creative constitutional lawyering, for the benefit of society at large, seems to be in the offing in the United States. In effect, not only does the opposite modus operandi apply, but the whole idea is seen as anathema to the American character. Anything political, so the foundational belief goes, needs to be decided through elections.

If only it were that easy. As it stands, the U.S. Supreme Court in recent years has acted in a rather partisan manner. In particular, the few reform laws that, against long odds, did manage to pass the U.S. Congress were then subsequently voided. Most notably, in 2010, the court struck down provisions of the McCain-Feingold campaign finance reform law that limited corporate involvement in politics.

The Supreme Court finds itself acting in the style of 19th-century French Courts de Cassation, which voided acts of parliament that promoted economic, social and political reforms directed at the creation of a more equitable society.

This pronounced trend toward a one-sided politicization of the court over the past several decades leads to a rather paradoxical outcome. A key part of the past success of the United States, especially in the immediate post-World War II era, was the spreading of economic and social rights to the “have-nots.” That inclusion strategy worked. The United States reined supreme in the world.

How is it possible that today the Supreme Court marches backwards so steadfastly, given the supposedly self-restraining power of precedent? Simply put, despite all the claims of hallowed principles, a court majority can literally interpret constitutional doctrine almost any way it wants to. Whether the court decides to move forward or backward, all that is really required is to come up with a distinguishing criterion that makes it appear as if the previous reasoning no longer applies.

Precedent thus is no obstacle for a reconstruction of society. And this court, which — given the relatively young age of the conservative judges — may be in power with its current political balance for decades to come, has chosen to engage in a unique social experiment.

That experiment is to graft an 18th century approach onto a modern, state-of-the-art 21st-century democracy. The court sees that as in full keeping with U.S. political traditions. The American Republic, after all, is rooted in a landowner-knows-best approach.

Along that curious path, one of two things is bound to collapse. It is either the dream to restore the 18th century — or the principles of inclusiveness and modernity. The U.S. Supreme Court is bound to present Americans with a clear choice.

Even more stunningly, the trend in the United States invites comparisons to the modern history of Latin America, but in an unfavorable sense for the United States. For centuries, Latin American courts, from a socio-economic vantage point, effectively acted as a political enforcement tool of the landed gentry.

They thus became a reliable bulwark against the legitimate social and economic aspirations of the country’s non-landowning, indigenous populations. That did not just stain the worldwide political image of these countries, but also stunted the economic development and growth potential of these societies.

Today, the courts (and political leaderships) throughout most of Latin America, including in conservative countries like Chile, have learned, at long last, that for there to be meaningful and sustainable economic progress, social inclusion is key. Otherwise, the lower-income groups’ economic potential, and their contribution to the country’s future GDP, will always remain far from optimal.

The trend in the United States seems to be running in the opposite direction — away from economic inclusion and advancing the rights of the less well-endowed. And yet, as the Latin American example has made so spellbindingly clear, if a supreme court believes its role is to uphold the narrow interests of a landowning or financial asset-owning elite, economic underdevelopment is the price to be paid.

As things are currently shaping up, unless the U.S. Supreme Court makes a surprising turn toward more balance and political unpredictability, one can foresee charges emerging that it is acting more and more as a Supreme Junta, in the style of the Latin America of the past, and not a Supreme Court. The outcome of the healthcare reform law will be a key proving ground.