Nine Scorpions in a Bottle – The Power of the United States Supreme Court

The Supreme Court of the United States. Credit: Wikimedia Commons

The Supreme Court of the United States. Credit: Wikimedia Commons

Alexander Hamilton, the founding father of the U.S. financial system and one of the most influential promoters of the U.S. Constitution, wrote in the Federalist Papers, (a collection of essays written by Alexander Hamilton, James Madison and John Jay in support of the ratification of the U.S. Constitution), that the executive branch holds the sword and the legislative branch the purse. “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Hamilton concluded, citing Montesquieu: “Of the three powers above mentioned, the judiciary is next to nothing.”

After the last week of the Supreme Court’s (SCOTUS) term that just ended, where it had the entire nation gasping for breath, one could be forgiven for thinking that Hamilton completely failed to understand the place of the the country’s highest court in the grand political design of the U.S. Constitution.

The fireworks began with the court upholding the Affordable Care Act (ACA), colloquially known as Obamacare, a federal law that represents a significant overhaul of the U.S. health care system. The case, King v Burwell, dealt with statutory interpretation of a mere four words involving allocation of tax credits to help individuals pay for health insurance. The small technical flaw in statutory wording appeared to make tax credits available only through health insurance organizations “established by the State” to facilitate the purchase of health insurance. 34 States in America had left the job of setting up these health insurance organizations to the federal government. Were Americans living in the States that had not set up their own insurance organizations ineligible for tax credits?

Writing for a six-member majority, Chief Justice Roberts emphasized that Congress obviously did not intend such destructive consequences, so it must have meant for tax credits to be available in all States. The majority ruled that Congress’s actual intent can be honored because it’s possible to read “established by the State” to include federal insurance organizations as a fallback option in States without their own insurance organizations. “Congress”, Roberts concluded, “passed the Affordable Care Act to improve health-insurance markets, not to destroy them.”

Gay marriage ruling

The next ruling in Obergefell v. Hodges, a decision that is probably right up there with other great liberal decisions of the past like Brown v. Board of Education (a decision that ended racial segregation in public schools) and Loving v. Virginia (a decision that lifted the prohibition on interracial marriages), legalized same-sex marriages nationwide. Writing for the majority, Justice Kennedy based the reasoning of the decision on 14th amendment’s “due process” clause which says that no one shall be “deprived of life, liberty, or property without due process of law”. Kennedy specified that marriage is a fundamental liberty right that is protected under the “due process” clause. Then applying a legal analysis known as “substantive” due process analysis, he held that the government may not infringe the liberty to marry absent a compelling interest and along narrowly tailored lines to achieve that interest. As no such interest exists, same sex marriage cannot be prohibited by the government. “They ask for equal dignity in the eyes of the law,” Kennedy wrote of same-sex couples in the case. “The Constitution grants them that right.”

All four justices who voted against the ruling wrote their own dissenting opinions: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Scalia, in particular, heaped considerable scorn upon the ruling calling it “a threat to democracy.” A strong advocate of originalism (a method of legal interpretation that views the meaning of the Constitution as fixed as of the time of enactment), Scalia wrote that it was the legislatures’ responsibility to address the issue of gay marriage, not the courts’. In a scathing attack against Kennedy, he claimed he would rather hide his head in a bag than join an opinion that began like Kennedy’s does, and bemoaned how far the Court has fallen: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

However, after losing two high-profile contests, Scalia tasted victory in Michigan v. Environmental Protection Agency (EPA) and Glossip v. Gross. In the first, another 5-4 verdict, the Court ruled that the EPA, a federal agency tasked with protecting the environment by enacting and enforcing environmental regulations, improperly excluded cost considerations from its decision to regulate hazardous air pollutants emitted from power plants. Scalia wrote the majority opinion and concluded that the EPA’s Clean Air Act was “interpreted unreasonably when it deemed cost irrelevant to the decision to regulate power plants.” “It is not rational, never mind ‘appropriate’ to impose billions of dollars in economic costs in return for a few dollars in health or environment benefits,” Scalia wrote.

If the decision in Michigan v. EPA  was a blow to environmental activists and the Obama administration, the Court’s decision in Glossip v. Gross dealt a severe blow to anti-death penalty activists. Three Oklahoma prisoners had argued that executions in Oklahoma carried out by a three-drug protocol of midazolam hydrochloride, pancuronium bromide, and potassium chloride constituted “cruel and unusual punishment” under the 8th amendment to the Constitution that prohibits governments from using excessive bail, excessive fines and torture. The prisoners asserted that there is “undisputed evidence… that midazolam cannot reliably ensure the ‘deep, coma like unconsciousness’ required when a State intends to cause death with painful drugs.” The Court ruled against three Oklahoma prisoners with Justice Samuel Alito, writing for the majority, stating that to win the prisoners had “to identify a known and available alternative method of execution that entails a lesser risk of pain.”

Justice Sonia Sotomayor wrote a dissent, joined by all the Court’s liberals; however, the most interesting aspect of the case was a separate dissent written by Breyer, joined by Ginsburg, which called for the abolition of the death penalty. “Rather than try to patch up the death penalty’s legal wounds one at a time,” Breyer wrote, he “would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”


Tenuous majorities

These decisions that were announced in just the last five days of the Supreme Court’s term demonstrate that few institutions in the world initiate and confound major political and social reform on the scale of the SCOTUS. However, the tenuous nature of the majority (a 5-4 liberal/conservative split in all major cases) and, in particular, the venomous dissents by Scalia reveal how surly and hostile life has become inside the SCOTUS. “Nine Scorpions in a bottle,” Alexander Bickel’s (one-time clerk for Justice Frankfurter) description of the judges, never had more resonance. These are court decisions that could have so easily gone either way. To paraphrase Jeffrey Toobin, lawyer and widely-acclaimed author, the replacement of a liberal judge by a conservative judge – or of a conservative judge by a liberal judge – can easily change the law, perhaps for a generation.

In America, the justices of the SCOTUS are picked by the President and confirmed by the Senate. Next term, the SCOTUS will hear Fisher v. University of Texas, a case where a white student has challenged her refusal of admission because of a race-conscious policy in place at the University, and Evenwell v. Abbott, a case which asks a fundamental question: does the Constitution’s “one person, one vote” principle require equal number of ‘voters’ per district instead of equal number of ‘people’, as is the current practice? Further, it is not unforeseeable that issues such as campaign finance reform, gun control and immigration law which have reached political boil may be in front of the SCOTUS.

With Justice Ruth Bader Ginsburg’s imminent retirement during the next President’s term and the resultant opportunity in the hands of the next President to appoint a replacement judge, it is nothing less than the history of the nation that is hanging by a slender thread in the upcoming elections.

Karan Singh Tyagi is currently based in Mumbai and is a graduate of the L.L.M. program at Harvard Law School.