A year after the passage of the health-care reform law known as “the Affordable Care Act,” its legal future is up in the air. Judges in five federal courts have weighed in on it, two of them declaring it unconstitutional and three supporting it. These decisions underline anew the tensions between Congress and the courts that our system of government creates.
The political opponents of the health-reform law have been quick to seize on the rulings against it. Republicans in Congress declared that they validated their opposition, while a number of governors announced they would halt implementing the law in their states. Supporters of reform, on the other hand, point out that the two antagonistic rulings came from judges who’d been appointed by Republican presidents; the three judicial decisions upholding the law, meanwhile, have come from judges appointed by Democrats.
With the law clearly headed toward the Supreme Court, partisans on both sides have drawn attention to the Court’s Republican-appointed majority and suggested that the reforms may face tough sledding there.
In theory, of course, the politics should be beside the point. A cardinal tenet of the American system of government is an independent, impartial judiciary, and among both politicians and ordinary citizens there is a broad understanding that the courts have a central role to play in the checks and balances woven into our constitutional system.
Yet that hasn’t stopped politicians and citizens from reacting with outrage to various judicial decisions. The unseating of state supreme court justices in Iowa who’d decided in favor of gay marriage; the death threats against U.S. District Court Judge John Roll — who was killed in January’s shooting rampage in Tucson — for his decisions on illegal immigrants’ rights; public anger over decisions decriminalizing sodomy, furthering civil rights, upholding abortion rights, governing the display of the Ten Commandments on public property; the near certainty that presidential appointments to the bench will be held up by senators of the other party who object to this or that item in the nominee’s past — all of these illustrate how blurred the line is between the judicial and the political.
Which may be why some judges provoke such animosity. I still remember campaigning for Congress in southern Indiana and driving past signs on the rural highways reading, “Impeach Earl Warren!” — long after the Supreme Court chief justice had died. And today, Congress has been forced to increase security arrangements for federal judges, while courthouses are coming to resemble fortified stronghouses more than the tribunals of an open democracy.
Members of Congress often decry “activist” judges who they claim disregard the law in favor of their political preferences. Every session some member is bound to propose legislation stripping the courts of their jurisdiction over one issue or another, or threaten to cut funding for the courts in retaliation for a particularly controversial decision. Some want to investigate or monitor the courts, while every so often, a serious move will get under way to impeach a judge.
Yet significantly, most of these steps never get very far. As our system has evolved, the power of Congress, the President, and the judiciary are meant to be in careful balance, and most observers are keenly aware of the risks if that balance is upset. Congress has enormous power over the judiciary through its control of the purse-strings; it could, if it wanted, make the judiciary a subservient branch. And the courts have enormous power over Congress, with their ability to strike down a law as unconstitutional or to interpret a law in light of the Constitution in a way that may differ from Congress’s sentiments. For the most part, both act with great restraint and try to avoid unnecessary confrontations.
This is as it should be. As Indiana University law professor Charles Gardner Geyh argues in his crucial book, When Courts and Congress Collide, with two such immensely powerful institutions the system can only work if there is a balance between them. Congress needs to respect judicial independence; judges need to remain accountable for their decisions. The public, for now, continues to have confidence in the fairness and impartiality of judges. Congress and the courts may be separate branches of government, but they are interdependent, and it’s crucial that each respect the core powers of the other as they interact with one another. Every year will bring a new test of where that balance ought to lie — which in a living democracy like ours is exactly as it should be.
Lee Hamilton is director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.