Supreme Court justices aren't judges. They're politicians.

And they're abandoning the rule of law

Supreme Court justices
(Image credit: REUTERS/Larry Downing)

The Supreme Court's landmark ObamaCare decision in King v. Burwell turned on a seemingly easy question: Do words have meaning?


The ObamaCare law specifically said that federal subsidies would flow on exchanges established by states. It didn't say anything about subsidies flowing to exchanges established by the federal government. Whether by design (to induce the states to set up exchanges, as ObamaCare architect John Gruber said) or because of a simple oversight (as many liberals argued), that's what the law said.

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ObamaCare's architects did not anticipate the scale of the popular and political blowback against ObamaCare, and thus didn't anticipate that so many states would refuse to set up exchanges. As a result, they didn't anticipate that so many uninsured people in so many states might have to rely on exchanges set up by the federal government. That's a serious issue.

But there's an even more serious issue here, and it's about the "rule of law" (which is not a sinister conservative invention). The entire point of having a republic, as opposed to a dictatorship or a totalitarian regime, is that the nation is ruled by laws that are uniformly applied, and not based on the whims of individuals. This is true even — especially, perhaps — when the whims of individuals would make lots of people better off. An enlightened despot might be able to do a lot of very good things, but it is still better to live in a republic under the rule of law. (Or at least, that's what so many in the West have believed for centuries.)

That's what "the rule of law" means. It means that what the law says is what is applied. Even when it's annoying. Even when it's frustrating. Even when lives are at stake!

Montesquieu, one of the greatest political philosophers of the Enlightenment and one of the chief inspirations of the Founding Fathers of the United States, put it best when he said that judges should be "the mouth of the law." Judges should not do what, in their opinion, they think is best. They should simply apply the text of the law. (And, by the way, while this solution does not make every single case easy to adjudicate, it sure makes a lot more cases easy to adjudicate than any alternative interpretation of what judges should do.) It's a matter of principle — that rule of law thing, again — but it's also what's best in the long run. It means everyone has a reasonable idea of what the law is and how disputes are going to shake out; it creates an incentive for legislatures and the body politic to do their job right, since judges won't be there to fix their mistakes for them.

So, do words have meaning?

Not when I don't feel like it, is pretty much the answer of the chief justice of the United States Supreme Court, John Roberts.

King v. Burwell changed the meaning of the Affordable Care Act, from what it said to something else that would avoid disruption to ObamaCare. This is a disastrous result for the rule of law, on which our constitutional and political order is built.

I know I shouldn't be surprised. "Judicial activism" is not new. Nonetheless, in a republic, Supreme Court justices — who nobody elected! — really shouldn't be in the business of making up policy because they feel like it. It's amazing that this even has to be said.

So let's admit the reality: We are told we have two political branches of government, and one which is neutral and is supposed to referee. But the obvious reality is that the Supreme Court is a political body. It has its political parties. It has its policy preferences. For a bill to become a law, you need a majority in each house of Congress, you need the president's signature, and in many cases, you need at least five votes in the Supreme Court to fend off any legal challenges. Update your middle school textbooks, everyone. Let's drop the pretense that these are judges, and admit that they are politicians doing politics, albeit a very strange kind of politics.

So, what do we do about it?

Frankly, I have no idea. After all, our system does need judges. We need judicial review. And just passing a law, or even a constitutional amendment, that says "Do your job, judges" would just be met with a 5-4 decision stating that by "your job" what is meant is clearly "the opposite of your job."

But perhaps we can at least start by getting real and dropping the pretense.

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Pascal-Emmanuel Gobry

Pascal-Emmanuel Gobry is a writer and fellow at the Ethics and Public Policy Center. His writing has appeared at Forbes, The Atlantic, First Things, Commentary Magazine, The Daily Beast, The Federalist, Quartz, and other places. He lives in Paris with his beloved wife and daughter.