Rod St. Aubyn: Politics And The Judiciary Are Not Separate Now

The writers of our Constitution and its amendments were generally very wise to ensure necessary checks and balances between the executive, legislative, and judicial branches of our government. With the announcements of major Supreme Court decisions this past week raises some new questions about adequate checks and balances.

First in the decision of King v Burwell (subsidies under the ACA), Chief Justice John Roberts writes “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” I wasn’t totally surprised with the decision, but I must say that I was disappointed. Not because I wanted the ACA to fail, but because of what I had been told by congressional staffers and other ACA experts when the act was first approved and explained to many of us in the insurance industry.

I was specifically told by others encouraging the development of a state-based exchange that funds would be made available to states pursuing a state based exchange and subsidies would be available for the state’s residents.

If there was no incentive to hosting a state-based exchange, why should states take the effort and risk to develop their own exchange? If there were no advantages, why not only offer a federal exchange?

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”] I am very uncomfortable with the court re-writing legislation. When Chief Justice Roberts says that “Congress passed the ACA to improved health insurance markets” he is making a quite an assumption.[/mks_pullquote]

The Court ruled that the term “established by the State” was ambiguous. It also noted that the ACA contains “more than a few examples of inartful drafting.” I am very uncomfortable with the court re-writing legislation. When Chief Justice Roberts says that “Congress passed the ACA to improved health insurance markets” he is making a quite an assumption. Legislation that was forced onto the American people without one Republican vote through numerous backroom promises (Cornhusker Kickback, Gator Aid, and the Louisiana Purchase) in the dark of night was not the will of the full Congress.

In addition, exactly how has the ACA “improved health insurance markets” in ND? We have experienced higher premiums and fewer insurance options from fewer insurers.

The second judicial bombshell was the announcement concerning Obergefell v Hodges (legalizing same-sex marriage). In this case, Chief Justice Roberts dissented in his opinion when he scolded the majority vote of “legislating from the bench” and saying there was “no grounds for a constitutional right to same-sex marriage.”

I have read comments about how this decision violates the First Amendment (freedom of religion) and the Tenth Amendment (States’ Rights). The language of the Tenth Amendment is very simple and clear. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As the Chief Justice stated, where in the Constitution does it guarantee the right to same-sex marriage? Perhaps we should grant this right. But that decision should be made by the State and not by the Federal government through the Supreme Court. As has been argued by many there could be many unintended consequences due to this decision. States should decide this after exhaustive comments and thought.

But what are the consequences of having rogue justices in the future.

Impeachment? Very doubtful.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]In addition, exactly how has the ACA “improved health insurance markets” in ND? We have experienced higher premiums and fewer insurance options from fewer insurers.[/mks_pullquote]

The authors of our constitution and its amendments wanted to establish adequate checks and balances within our government, but yet protect our judiciary from politics for the most part. However, politics and the judiciary are not separated now. The winning party that occupies the White House can nominate people to be confirmed by the Senate.

If you don’t think politics is involved now just refresh your memory of the confirmation hearings for Judge Robert Bork and Justice Clarence Thomas. With the exception of Roberts or Kennedy, Justices’ votes are predictable. Does that show that politics are not in play?

Justices of the Supreme Court serve for life if they wish.

They are virtually unaccountable.

If I could make one change to our constitution it would be to give justices a ten year term with an option for a second 10 year term upon a reconfirmation hearing by the US Senate. That way the Senate will be able to evaluate if a Supreme Court Justice has strictly interpreted the Constitution and has not been guilty of legislating from the bench. The President is limited to two terms; perhaps it is time to limit the terms of the Supreme Court as well.