The Supreme Court has taken an active role in redefining, rather than simply interpreting, our country’s laws. Two clear examples of this can be seen in the two ObamaCare opinions written by Chief Justice Roberts, NFIB v. Sebelius and King v. Burwell. Whether it is calling a penalty a tax, or saying an exchange established by Kathleen Sebelius was established by the states, the Supreme Court is playing an active role in changing legislation.
While the perversion of the Court’s sole constitutional role of deciding cases and controversies is the major concern from this change, there are two very real political concerns as well.
First, this active legislative role of the Court takes pressure off of the other branches to work together on legislation. Normally, when a law is unclear or was written in a way that was contrary to the supposed intention of Congress, the legislature would work to fix the law. Now it is the prerogative of the president and Congress to wait and hope the Supreme Court changes the law to reflect what they wish the law said.
This is exactly what happened in the King v. Burwell case. Congress passed a law, and President Obama signed a law that allowed the IRS to subsidize insurance plans purchased on exchanges established by the states. The plan was to entice the states to set up their own exchange, but most of the state refused to do so.
Because the states refused to set up their own exchanges, President Obama and Democrats in Congress wanted subsidies to be able to flow from the federal exchange as well. Rather than work with Republicans on a broader reform, the administration interpreted the law in a way that would allow subsidies in the federal exchange.
Instead of changing the law as it was written, Democrats trusted that the Court would change the law for them. The Court did not let them down. Six justices ignored their main constitutional role and legislated from the bench.
There has always been division in politics, but the range of voices were able to come together to pass necessary legislation. Now that the Court has become a secondary legislator, the other branches have less of reason to work together to correct problems with the law.
The second political problem with a legislative Court is that there is no pressure on Congress to pass clear, concise laws. If the Court will change the clear meaning of words to make them fit with what some in Congress claimed their intention was, there is no reason for them to make their intention clear in the actual law.
Not only is the Supreme Court abandoning its constitutional role and usurping power from the other branches, it is causing real political problems. The Court returning to its proper role would force Congress to pass clear laws that are easy to interpret. It would also force Congress and the president to work together if they want to fix laws that were poorly written.