This is the season of the United States Supreme Court. Its spell in the media sun doesn’t last long – just the two or three weeks before its judicial term ends on 30 June. But over that short period, on Mondays and Thursdays, the justices hand down their most keenly awaited rulings.
This year there are a couple of real blockbusters, which could be delivered as soon as Monday. One could turn gay marriage into a constitutional right, meaning that every state has to permit it. The other could rip the heart out of Barack Obama’s healthcare reform, the crowning achievement of his presidency.
The Supreme Court, enshrined as one of three “co-equal” branches of government, along with the Presidency and Congress, and embodied by its nine black-robed members, is the model for such institutions around the globe: supposedly impartial and unaligned, the guarantor of a constitution that binds America’s political system to the rule of law. But is it – or has it become too powerful for the good of the country?
In fact, the constitution gives the court relatively short shrift. By far its longest section is Article 1, enumerating the powers of Congress. Then comes the executive branch, the presidency, and finally the judiciary whose role is spelt out in four bare paragraphs. Congress was clearly intended by the Founding Fathers to be central political institution of the United States. But how times have changed.
Power has long been seeping out of Congress into the presidency, today indisputably first among the co-equals. But more recently, hyper-partisanship and general dysfunction on Capitol Hill have seen more of that power pass in practice to the court, now, just as indisputably, the second most influential branch of government.
If you don’t believe me, just consider this. Since 2010, the Republican-controlled House of Representatives has voted nearly 60 times to abolish the detested Obamacare, but to no avail. Some time in the next eight days, the Supreme Court could do so with a single ruling, upholding a lower court decision that would deprive six million lower-income Americans of the federal subsidies that allow them to purchase health insurance. Indeed, it could have done so three years ago when only the surprise deciding vote of Chief Justice John Roberts – normally part of the court’s 5-4 conservative majority – prevented the law from being declared unconstitutional. Supporters of the law are praying the same happens this time. But there’s no guarantee it will.
