The true process of judicial review

I’ve had the opportunity to read through my colleague’s thoughts on Healthcare.  While well meaning, this post unfortunately reflects a fundamental misunderstanding of the judicial process.  The Supreme Court does not merely “decide” when to determine whether or not an act of Congress is constitutional or not.  There is a carefully-developed process.  This process was carefully developed to ensure that the Court considers only those issues that most demand its attention.  The Court, first and foremost, cannot consider the constitutionality of comparing proposals.  First, Congress has to actually pass a law that is then signed by the President.  Then, lawsuits are filed on the district court level challenging the constitutionality of the act.  Decisions are made in those suits which are then appealed to one of several courts of appeals.  The court of appeals then passes judgment on the wisdom of the district court of opinion.  Generally, the case only makes it to the Supreme Court if the appellate courts disagree.  This process takes time, but is important to ensure that the Supreme Court’s time is dedicated only to issue upon which there is true disagreement.  In this case, as the “Obamacare” case has worked its way through the judicial process, various appellate courts have disagreed on the constitutionality of this law.  This is a valid reason for the Supreme Court to consider the case.  If the appellate circuits were to agree on the constitutionality of this law, then there would be no reason for the Supreme Court to consider the issue.  It may seem that this case is convenientttly designed for political purposes, but this is, in fact, a accurate reflection of judicial review of an act of Congress as our founders intended – through carefully-orchestrated judicial review.  While I agree that at its core, politics underlies nearly all decisions of every branch of government, this case seems to be following a course that is typical of all important legislation.  It would be unfair to judge that the Supreme Court is scheduling this case differently merely for political purposes. 

A new concept - “Lobbying” the Supreme Court

Decisions made by the United States Supreme Court often go unnoticed, and it is even more rare that the American public is either aware of or engaged in the process the Court uses to come to it’s decision. Last week was an uncommonly historical week as much of the nation found itself enthralled in the details of the Court’s three days of oral arguments regarding the various aspects of the “Obamacare” healthcare legislation. Today, something perhaps even more rare and historical occurred – the President of the United States openly lobbied and pressured the Court to decide in his favor in these cases. It is not unusual for the public to be well aware of a President’s opinion regarding the constitutionality of legislation being reviewed by the Court – especially when it is legislation that was championed by that President or his party – but President Obama’s bold statements, made during the course of the Court’s deliberations, are nearly unparalleled. One can’t help but be reminded of Franklin Roosevelt’s “court packing” proposals and wonder what President Obama has in mind next. At the very least, he gives easy fodder to those who claim he will stop at nothing to promote his agenda.

Of course, such discourse with the Court is not unheard of for this President. In his 2010 State of the Union address, Obama famously called out the Court for the Citizen’s United decision involving campaign finance. Many referred to Obama’s comments in 2010 as a significant breach of decorum. The comments famously led Justice Alito to mouth “not true”, giving both political parties ample ammunition for criticism.

What’s concerning about these actions by the President is that they reflect an overall lack of limits in the extent to which the President will reach to push his agenda. Not since Franklin Roosevelt has a President been so willing to step out of the bounds of the separation of powers and actively attempt to lobby the Supreme Court on pending matters. At the very least, it seems distasteful and disrespectful to call out the Court regarding a pending matter. At worst, it shows the intent of a President who believes that his ideals are more important that the boundaries set forth by the Constitution. If the Court does, indeed, decide against Obamacare, the President’s reaction to such a decision will be very telling regarding his opinion of the system of checks and balances put in place by our founding fathers.