In a previous post, I pointed out that appointments to the US Supreme Court typically excite far more interest than appointments to the UK Supreme Court. One reason for this is that the US Supreme Court plays a central role in the political life of the United States when it rules on whether legislation is “constitutional”. As a result, the US Government can find flagship policies hanging in the balance, pending a Supreme Court ruling on their constitutionality.
A good example of this is the recent US Supreme Court ruling on the “Obamacare” law, or Affordable Care Act. The provision and funding of healthcare has been a major political issue in the US for decades. The Affordable Care Act – arguably President Obama’s greatest domestic policy achievement so far – addresses this issue by, in effect, requiring people to pay for health insurance, and subsidising the cost of such insurance for the poorest. Those who decline to take out insurance are required by the Act to make a “shared responsibility payment” to the US Government: and the Act says that such payments “shall be assessed and collected in the same manner” as tax penalties. In effect, then, the Act tries to force people to take out health insurance by imposing financial penalties on those who do not.
It was argued before the Supreme Court that the Act was unconstitutional: that, in enacting it, Congress (the US equivalent of the British Parliament) had gone beyond its authority under the Constitution. But the challenge failed, and the constitutionality of the Act was upheld: “shared responsibility payments” could, a majority of Supreme Court Justices held, be characterised as taxes, and Congress, under the Constitution, has the power to levy taxes. On one level, then, this case turned on technical questions about whether “shared responsibility payments” could count as taxes, and so about whether Congress was properly exercising its taxation power in levying such payments.
But the case can – indeed, must – be appreciated on another, political level, too. It was brought, as one commentator has put it, “by Republican attorneys general and governors as a challenge to the signature achievement of a Democratic Congress”. This serves as a clear illustration of the way in which political arguments can spill over into the court-room, at least in the US system. And the way in which the Supreme Court split demonstrates that far more is going on here than simply the mechanical interpretation and application of the constitutional text. In a fascinating (and very readable) piece in the New York Times, Linda Greenhouse notes the pivotal role played in the Obamacare case by Chief Justice Roberts. She argues that his clear “goal” during his time on the Court so far has been to “turn the court to the right on the hot-button issues of race, religion and abortion”, and considers whether his support for the Affordable Care Act marks a change of course.
The very suggestion that a Chief Justice might have a goal (other than applying “the law”), let alone that that goal might be political in nature, will read oddly to those who assume that judges merely identify legally “correct” answers to the problems presented to them. Of course, Americans well recognise that constitutional adjudication involves more than just mechanical application of technical rules. But it should not be supposed that such phenomena are confined to the US: take a look at this post on the UK Supreme Court Blog concerning that Court’s recent decision on the rights of cohabiting couples – and note, in particular, the reference towards the end of the post to a call by one of the Justices (Lady Hale) for law reform in this area. Lady Hale’s comments are atypical – indeed, Joshua Rozeberg has argued that they amount to “an entirely political speech” that “had no place in a court judgment”. But they at least serve as a reminder that British judges – like their American counterparts – inevitably have views of their own, and that those views may, on occasion, influence what they say in their judgments.
Public Law for Everyone 