I know lots of people, who claim to be experts, are predicting all kinds of things. In my own opinion, no one knows which way the court will decide. Without writing pages about this topic, keep in mind a few things:
1. The power of the Supreme Court to declare legislation unconstitutional is not given to them in the Constitution. In the famous case of Marbury v. Madison, the Supreme Court decided on its own that it had the inherent power to decide if legislation was unconstitutional. As a country, we often need a final decision on many critical national issues so we have, over the years, allowed the Supreme Court to exercise this power until it’s almost as if the Constitution gave them the power originally.
2. The decisions of the court are extremely political–in the back rooms. By that, I mean since we have an odd number of justices, the Chief Justice’s job is to forge a majority opinion in which he often has to “horse trade” various issues or points with several opposing factions until a consensus is reached. I expect for a controversial issue like Obamacare (it’s actually a huge, complex law), there will be lots of back room compromising.
3. In the past, conservatives have accused the court of being “activist” in the sense they don’t follow the law but, instead, create new law. It seems to me that both political parties accuse the court of this–unless the court decides something in their favor. Remember the presidential election between Bush and Gore and how the vote in Florida was critical? The U.S. Supreme Court stuck its nose into a state issue and made a decision. Since the country wanted an answer to the election, we accepted their meddling. Conservatives, happy with the result, never accused that court of “activism”, even though they went beyond their jurisdiction to decide a state problem, not federal. Or the other example is Roe v. Wade which drives conservatives crazy because the court “found” the right of privacy in the Constitution, even though it’s never specifically mentioned.
4. Historically, once a person is sworn-in for life as a Supreme Court justice, they can do what they want. Former prosecutor and Republican Chief Justice Earl Warren is the best example of a person who changed his position on criminal justice dramatically once he got on the bench. These present justices may vote differently than people expect them to do.
What do you think?
Keep reading about my new book…
***Don’t forget to check out my new book, Fallout which will be released on June 1, 2012.*** More about it in later posts!!