• Currently Speaking:
  • Currently Speaking on Facebook
  • Currently Speaking on Twitter
  • Email Currently Speaking

It Just Does Not Get Any Better Than This

Posted by Jim Johnson on

Jim Johnson

Jim Johnson

Last week as the United States Supreme Court heard oral argument relative to the constitutionality of various provisions of "The Patient Protection and Affordable Care Act" HR 3580 (known as "Obamacare" by those who view the law pejoratively or the unschooled… frequently one and the same), I was struck by two observations.

First just how little people seem to know about the Supreme Court and how it actually works, and secondly what an absolutely wonderful ideological conundrum Republicans/conservatives now find themselves in.

With respect to the first observation, from Fox to MSNBC I listened to analysts and reporters discuss the "trial" taking place in the Supreme Court. They spoke of the intense questioning counsel was subjected to by various justices and attempted to discern what those questions may mean in terms of identifying how the Court will rule.

Anyone who knows anything about appellate court operations is quite cognizant that there are no "trials" in the Court, that questions are prepared well in advance for the justices by their staff and of course are not necessary for Justice Thomas since he never asks any and finally, that as Court insiders will tell you, oral argument at best may constitute 5% of the total impact on the ultimate decision made by the Court. Such is the domain of result-oriented journalism.

Far more interesting is the position in which Republicans/conservatives now find themselves. The Patient Protection and Affordable Care Act is law-- valid, binding federal law. It was appropriately introduced, debated and passed pursuant to the provisions of the House and Senate and signed into law by President Obama. As such, the only way it can be either entirely or partially invalidated by the Supreme Court is for the Court to utilize a practice know as "judicial review".

Judicial review was the intellectual progeny of Chief Justice John Marshall in his 1803 opinion in the case of Marbury v Madison. Marshall, seeking to create the true check and balance power for the Court over Congress and the Executive Branch, crafted an eloquent opinion in which he held that those who drafted the Constitution intended to give the Court the power to invalidate any act of Congress which is hostile to the provisions of the Constitution.

Since that holding over 200 years ago, the Supreme Court has exercised judicial review constantly. In so doing it exercises a power which is not mentioned anywhere in the Constitution and a power which has historically driven conservatives mad.

Constitutional interpretation exists on either side of an ideological fault line with respect to what the Constitution actually says. One school believes that in order for the Constitution to remain relevant as society evolves, so to must the Constitution evolve.

Of course there is no mention of aircraft, life-support systems or the Internet in the Constitution (as well as no mention of abortion). The Court however has repeatedly issued holdings predicated on how a 210+ year old document would view these inventions of the past century. This cannot happen unless Justices attempt to make the Constitution relevant to modern life. Conservatives hate it and rail against "liberal justices legislating from the bench."

The other school of thought, the domain of conservatism, is known as "strict constructionism" (primarily populated by members of the Flat Earth Society). This school posits that the Constitution must only be applied relative to the words contained in the document, that Justices should not be allowed to interpret or read into the Constitution any word or phrase beyond that which was originally written. In colloquial language, "If it ain't there, is doesn't exist."

This approach would prefer to relegate the Supreme Court to applying the language of a two-century-old piece of parchment to life in a world the drafters could never imagine. For conservatives the application of judicial review is an anathema to all they hold dear.

And now to the conservative conundrum. The only way--repeat, the only way--the Supreme Court can eviscerate the healthcare statute is to invoke the precise practice which conservatives loathe: judicial review.

In other words, for the conservative-anti-progress-anti-intellectual-strict constructionist believer their fervent prayer between now and sometime in June is that the Court will…yes…here it comes… in their own words, "legislate from the bench."

As I wrote at the onset of this piece, it just does not get any better than this. As this spring progresses and turns to summer, were one to stand in Shockoe Cemetery in Richmond, Virginia, I am certain one could hear the distinct laughter of John Marshall watching as the very people vehemently opposed to his genius now bow to it and pray for its application.

Opinions expressed here are those of the author and do not necessarily reflect the views of Andy Rapp, Q-TV, Delta College, or PBS.


Currently Speaking host Andy Rapp

Veteran journalist Andy Rapp has been hosting Currently Speaking since 1999.

Each week, he's joined live in the studio by journalists, academics, and experts. Along with viewers at home, they tackle the local, national, and global issues that matter most.