It certainly has been an interesting week in the world of law and of politics. Since the Supreme Court's decision handed down on Thursday, which basically upheld the individual mandate, the key provision in the Affordable Health Care Act, I have read my share of reactions to the ruling from people on both sides of the issue as well as considering the perspectives of Christians (on both sides of the issue) who have commented as well.
So, what I plan to do over the next week or so is offer some of my own thoughts on the matter in three parts. In this post, I would like to offer some reflections on the political nature of judicial philosophy. The second part, which I will post next week, will be to offer my perspective on what I believe is good about the AFA, while offering my concerns as well. Finally, I will post a third part in which I will reflect on the church's role and offering my continuing concern that the church's missional posture is too centrally focused on implementing the character of God's kingdom through legislation, while functionally throwing to the curb our primary duty to witness sacrificially to that kingdom in word and deed. It is the last post that is most important to me.
I am certainly no expert in constitutional law, but over the years I have had a great interest in it (A strange thing indeed for someone who continues to say that Christians need to be less focused on the law as an instrument of churchcraft.) Nevertheless, I have read many things over the years on the subject and have read at least some introductory accounts of the judicial philosophies of each current Supreme Court justice, as well as, at the very least, brief biographies of each.
It didn't take long after the Constitutional Convention of 1787 for politicians to begin attempting to manipulate the Supreme Court turning it into a legislative arm.
Thomas Jefferson declared all out war on the Supreme Court over his strong objections to the handling of the Aaron Burr trial, and in the twentieth-century Franklin Roosevelt, at one point, hoped to increase the number of justices on the court in order to stack the court for his own purposes. These are only two examples. There are others; and both sides of the political aisle have been guilty of such behavior.
Without justifying some of the bad behavior of politicians in this matter, it is understandable that more than a few would be tempted into it. Contrary to popular opinion, judicial philosophy IS inherently political. While it is making a very broad generalization, I think it is helpful to observe that conservatives and their commitment to so-called strict constructionist readings of the Constitution, and liberals and their desire to deconstruct the Constitutional texts are attempts to pass off their judicial philosophies as standard and normal readings and therefore, somehow free from political manipulation. Conservatives do this in passing off the intent of the framers of the Constitution as the definitive understanding for how the document should be read (nevermind the difficulties at times in figuring out their exact intent), and liberals appear to think their judicial philosophy is free from bias and somehow a neutral, objective understanding-- hence their criticism that split Supreme Court decisions along "party lines" are partisan only for the conservative justices. The fact that the four decidely liberal justices most often vote the same way has nothing to do with partisanship; they are simply reflecting a neutral and unbiased judicial perspective (Nevermind the fact that being liberal, just like being conservative, necessitates standing in a particular place and not above the hermenutical fray.)
The point of all this is the law and rulings that apply the law cannot be separated from politics. All judicial philosophies and all rulings from the Bench are also political in character. Once that is acknowledged we can have helpful and substantive discussions as to what is and is not (or may or may not be) constitutional and refrain from the demogoguery we so often experience from patisans on both sides.
And that leads me to my final observation: I have a great deal of respect for the Supreme Court and each and every justice of the Supreme Court. Frankly, it is the one branch of government left that I regard with a great amount of respect. I have listened to and read interviews with most of the justices (at least the ones I have been able to find). It's amazing how one begins to feel about people once you humanize them. It makes it much more difficult to demonize them. For example, Justices Scalia and Ginsburg have developed a close friendship over the years and have even gone fishing together. Imagine that! People with very differing political views who not only get along, but who spend time together. Only politicial partisans whose politics has become their religion cannot relate. From everything I have read, all nine justices get along very well. Sure they have their disagreements, and I have no doubt that in their deliberations they can become passionate in making their case to each other. But it is a good thing they do not act toward each other the way many on the outside looking in act toward them. Too many partisans on the left and on the right have simply behaved disgracefully in the insults they have leveled at particular justices. In the few days prior to publication of the decision on the AHA, the left demonized Justice Roberts personally. Now that he has upheld the individual mandate, he is being referred to by those same people as a sophisticated jurist and intellectually honest. Of course, I suppose it's a good thing he now enjoys such popularity because the right is now insulting and demonizing him and questioning his intelligence. One of the great problems in current political discourse is the "me standard" for evaluating someone's moral and intellectual abilities, which is nothing other than narcissism as a tool of evaluation. If you agree with me, you are one smart and moral person. If you don't... well your evil and an idiot.
Such demonization and character assassination lessens the important political discussions we must have. (And ALL of us have engaged in this from time to time, and we must repent.) If politics is the discussion necessary to discover the goods we have in common, we have a stake in engaging those who disagree, with passion to be sure; but also with the kind of respect that does not dismiss the other simply because we believe their opinions are not nearly as right and as intelligent and as enlightened as ours.
Next week I will discuss what I like about the Affordable Health Care Act and register my concerns as well.