The Huffington Post

April 10, 2012

An Open Letter to the Supreme Court

Believing in the rule of law and the independence of the judiciary, I have generally resisted the partisan claims from Left and Right that you, our life-term justices on the Supreme Court, dispense justice with a heavy ideological hand, in accord with partisan political biases.

I recognize that you cannot operate without a judicial philosophy, that there are generic liberals and generic conservatives on the court. But I prefer to think this does not translate simply as "liberal = favorable to Democrats" and "conservative = favorable to Republicans."

Yet the radical inconsistency of the court in two recent cases suggests I am insufficiently cynical. Although you will not rule until June, two weeks ago your conservative side, an apparent majority, suggested in looking at the constitutionality of "Obamacare," that neither the interstate commerce clause nor anything else in the Constitution gives the government the right to mandate the buying of private insurance by "free riders" -- even though the healthcare legislation depends on that device for it to work for insurance companies, and even though the public good would seem to make this a justifiable intervention. (If the young and healthy don't buy in, insurers can't afford to insure the older and less healthy).

Now I get that, generically, liberals tend to support the intervention of the federal government in the private domain in the name of the common good but conservatives do not. So you conservatives on the court don't want government trying to "make" people do nice things (like buying insurance or broccoli) even if a public good depends on it. Or fining them if they don't.

The Supreme Court is a special case, but since it will eventually have to pass on the constitutionality of selling public offices to private bidders, it probably also needs to go for a trillion per court seat. After all, if you want to buy not just public offices, but legitimacy as well, you gotta expect to pay out.

As a liberal I don't like that position, but I get it. You don't have to be a Republican to want to contain the power of the federal government, good intentions notwithstanding. Limited government is the American way, and from a conservative point of view, the more limited, the better.

But hang on, a week ago, you justices -- the very same Court reviewing Obamacare with such scrupulous regard for the right of individuals not to be roughed up and pushed around by an overweening state -- handed down an astonishing 5-4 ruling in Florence v. County of Burlington upholding strip searches in any arrest a cop might make. You made clear you meant any arrest, including for violating a dog leash law or a driving infraction.

Which is what happened to Allan W. Florence, who was pulled over for speeding and then held in jail on a mistaken report of an outstanding warrant on an "unpaid" fine Mr. Florence had in fact paid. While being held for a week in jails in New Jersey clearing up the mistake, he was stripped searched twice. You said "too bad" but "undoubted security imperatives" overrode privacy rights here.

So, let me get this straight, the state can't mandate that citizens buy health insurance to make a national health care plan viable -- or even be required to pay a fine if they refuse -- but it can strip search drivers arrested for NOT paying a fine (even though it turns out maybe they had) and can strip and cavity search nuns arrested at a peaceful protest? (yes, that happened too!)

Surely justices anxious about big state overreaching ought to want to make body searches the exception not the rule! Or if you're not worried about overreach when civil rights are at stake, shouldn't you be much friendlier to Obamacare than you are when a public good is involved? Unless you are not really conservatives at all, but proxy Republicans pushing a party agenda like you appeared to do in Bush v. Gore. You sure make it look like you are just channeling politics, in one case empowering government to abuse rights on the whim of a single corrections officer, in another preventing a Congressional majority from using legitimate power to establish a national healthcare system requiring fines, which you treat as massive overreaching.

That's not judicial philosophy, Justice Kennedy, that's partisan politics. And that's a pretty good way to erode the standing of the court in the eyes of a public that doesn't much trust any political institution anymore. And maybe invite an Occupy the Court movement.

But here's the deal: the Court's ruling on Obamacare is still up in the air, and won't come till June. Maybe you still intend to reestablish your philosophical consistency by agreeing that while free riders on a National Healthcare plan can't be forced to buy insurance (like let's not arrest and strip search them), they can be fined if they don't? That if it's OK to strip search anyone arrested for anything, then maybe when a truly public good like health care is at stake, it's OK to ask citizens to pay their fair share of the burden.

Previous commentaries can be found on Benjamin Barber's blog.