Correction to This Article
An earlier version of this column incorrectly said that Supreme Court Justices Antonin Scalia and Clarence Thomas participated in a political retreat hosted by Charles Koch while the Citizens United case was before the court.The version below has been corrected.

Are conservatives endangering the high court?

Tuesday, February 15, 2011

Less than a month after President Obama signed the health-care reform into law, Justice Stephen Breyer predicted that the legislation would one day make it to the high court. Now that four federal judges have ruled on the matter, it appears that Breyer was right, and he may be weighing in, along with his colleagues, sooner than expected. What's at stake is not just the law itself or the fate of the tens of millions who wait for its benefits, but the very legitimacy of the court.

At issue is to what extent Congress has the authority to use an individual mandate to regulate health insurance -- a question that few, until recently, expected to be controversial. Jurists across the political spectrum, including Charles Fried, President Reagan's solicitor general, have argued that the mandate is unquestionably constitutional. Harvard Law professor Laurence Tribe said it would require "illusory" formulations to find otherwise.

Yet in Florida and Virginia, two federal judges appointed by George W. Bush disagree. One, Henry Hudson, ruled the individual mandate unconstitutional, and the other, Roger Vinson, voided the legislation in its entirety. Both decisions have an unmistakably political tone. Vinson's in particular reads like a Tea Party manifesto.

I hope that the Supreme Court, when finally confronted with the issue, will hold itself to a higher standard. But right now, the signs are not very encouraging. If the court's conservatives choose to overturn the legislation on clearly political grounds, it would call into question the legitimacy of the court. It would show, once and for all, that certain justices are governed by ideology rather than precedent. That would appear especially true when considered against the backdrop of recent events.

Clarence Thomas, for example, has recently come under fire for defying perfectly reasonable financial disclosure requirements, refusing to include key information about his wife's employment and income on 20 years' worth of documents. In doing so, he has shown a disregard for the law unbecoming a judge at any level. This failure is made worse by the fact that Virginia Thomas was the founder of Liberty Central, a Tea Party organization that has received corporate contributions not subject to any legal limit (only made possible by her husband's vote in the Citizens United case) and has lobbied for the repeal of the "unconstitutional" health-care legislation.

Might Thomas rule again in a way that aligns with the objectives of those political elements? That is the worry of, so far, 74 House Democrats, who sent a letter to Justice Thomas insisting that he recuse himself from any health-care case. "Your spouse is advertising herself as a lobbyist who has 'experience and connections' and appeals to clients who want a particular decision," said the letter. "They want to overturn health-care reform."

Justice Antonin Scalia, too, has been the subject of recent controversy. Scalia and Thomas have also come under fire for appearing at political retreats hosted by Tea Party financier Charles Koch before the Citizens United case came before the court. Even if the case was not pending, the justices showed poor judgment in attending an event that raised a troubling perception of conflict of interest. Common Cause recently filed a petition asking the Justice Department to investigate whether the justices should have recused themselves and whether the decision can be vacated in response.

In this highly politicized context, it is the public's confidence in the court that is most at risk. That confidence, as described by Justice Stephen Breyer in his impassioned dissent in Bush v. Gore, "is a public treasure. It has been built slowly over many years" and is a "vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself."

According to Jeff Shesol, author of "Supreme Power," an increasingly relevant history of Franklin Roosevelt's battle with the Supreme Court, "What's at risk is not just a loss of faith in particular justices or even the Supreme Court as a whole, but a broader loss of public faith in the rule of law and the fairness of the judicial system. When the Supreme Court is simply politics by other means," he said, "there is corrosion that seeps into the rest of the system."

Of course, we're well past the point of imagining that justices are free of political views or policy preferences. That kind of willful naivete ended in the 1930s, when the court went to war against the New Deal (and, in the end, surrendered). Even so, we need to believe the justices are working hard to retain an open mind.

That is not possible to believe when justices -- in opinions and in public forums and interviews -- expound an inflexible set of beliefs and are perceived to warp and disfigure the law to fit those preferences in each case. When justices use cases to score ideological points, to advance a broad and sustained argument against governmental action, the law becomes little more than an instrument applied bluntly in pursuit of an agenda. It is not that we expect justices to completely disassociate themselves from the world, but we cannot accept their flagrant and excessive involvement in matters that are before -- or will soon come before -- the court. Their behavior makes impartiality an impossibility.

Is it too much to ask of our Supreme Court justices that they exercise a basic level of restraint, especially in such a hyper-polarized environment? Do Justices Thomas and Scalia, and Chief Justice John Roberts, really understand what's at stake -- and what the damage their actions can do to the institution they have an obligation to protect?

Katrina vanden Heuvel is editor and publisher of The Nation. She writes a weekly online column for The Post.

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