Will the Supreme Court Do the Right Thing?

by Bradley A. Smith

In an editorial today urging the Supreme Court not to find the inaptly named Affordable Care Act — aka “ACA” or Obamacare — unconstitutional, The New Republic’s editors argue that the Court should find the ACA constitutional because, well, first, because it is really, really important, and second, given that the Court’s liberals will uphold the Act, any decision striking it down will be 5–4, which will really, really damage the Court’s reputation. In short, the law is too important for the Constitution, and the conservative justices had better recognize that the liberal ones hold them hostage.

But what struck me was this passage: “[The Court] should presume laws to be constitutional, just as trial courts presume accused criminals to be innocent.”

The New Republic editors never say why the Court should presume laws to be constitutional, but let’s work for a moment with their analogy. Why do courts presume accused criminals to be innocent? Isn’t the reason three-fold: 1) taking away a man’s liberty is a very big deal; 2) the state has enormous power and we need to shield individuals from that power; and 3) majorities are often ready to sacrifice the interests of individuals in the passion of the moment, or simply because they think something is really, really important. 

All three of those reasons would suggest that courts should presume that laws are unconstitutional — at least any laws that operate to restrain the liberty of some individuals, as the ACA does. The presumption of innocence is there to protect individuals from state power and unchecked majoritarian passions. The presumption of unconstitutionality serves the same purpose.

#more#Though not mentioned by The New Republic’s editors, the reason more commonly given for the courts to presume that acts of Congress are constitutional is respect for coordinate and equal branches of government. But this raises two issues. First, if courts simply defer to Congress, then why have courts at all, or, at least, courts with the power to rule on the constitutionality of statutes? If they are indeed co-equal branches of government, why should the Supreme Court effectively let Congress determine what the Court does? 

The answer to this question is that if the Congress wants the Court to presume the legitimacy of its judgments, it must presume that Congress carefully considered the constitutionality of a law, in which case it could respect Congress’s opinion. But isn’t that exactly why this case in now before the Court? Congress gave almost no thought to the ACA’s constitutionality. Or, in the famous words of Nancy Pelosi, “Are you kidding?” Or, as then Representative Phil Hare (D., Ill.) stated, “I don’t worry about the Constitution on this. . . . What I care more about, I care more about the people dying every day who don’t have health care.”

Congressmen and presidents routinely announce that they will leave it to the courts to settle the constitutionality of issues. So Congress assumes plenary power and defers any constitutional questions to the courts, and the courts then defer to Congress’s “judgment” about constitutionality — meaning no one is taking the Constitution seriously. And that means no one is looking out for the rights of minorities and individuals not to be unduly and improperly burdened, bullied, and ordered about by their government. In truth, all three branches — Congress, the president, and the courts — should presume that any legislation put before them is unconstitutional, and only when all three branches have satisfied themselves otherwise can such legislation become law.

The ACA may be constitutional, at least within the precedents set by the Court over the last 75 years. But The New Republic has it exactly backwards: we presume accused criminals are innocent in order to protect them — and ultimately ourselves — from excessive state power and what Walter Lippman called the “dictatorship of temporary majorities.” The same approach should be used in considering the constitutionality of laws that infringe on individual freedoms. That doesn’t mean that the Court should find the ACA unconstitutional, but it does suggest that the proper analysis begins with a presumption of unconstitutionality.

— Bradley A. Smith is Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School.

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