Wednesday, April 4, 2012

Separation of Powers … NOT!

Back when I was studying American history in high school, there was a fair amount of emphasis on how the Founding Fathers’ conception of separation of powers entailed that the Judiciary division should be independent of political squabbling.  Given the current state of education in this country, I have no idea how aware our electorate is of this fundamental premise today.  In that context I have to wonder to what extent Ronald Dworkin’s recent NYRBlog analysis of the arguments over health care before the Supreme Court (blatantly titled “Why the Health Care Challenge Is Wrong”) will have any effect on either the general public or the nine Justices themselves.

Dworkin has a writer’s gift for taking complex issues and explaining them with thoroughly readable clarity;  and his scholarly background allows him to negotiate the complexities of legal argument, often deliberately intended to obfuscate, with consummate skill.  Thus, his post succeeds in arguing that the challenge to Barack Obama’s plan for the first steps of health care reform had no business coming to the Supreme Court in the first place.  He also pulls no punches in explaining why events played out the way they did:  The timing was such that a decision would be handed down at a time when most of the electorate would be focused on the coming Presidential election,  Thus, a rejection of Obama’s plan by an allegedly objective Judiciary would provide support to the Republican Party in this election.  In other words this has never been a question of whether or not Federal reform of health care is Constitutional.  It has only been about the Republican’s extending their power base “by any means necessary.”

Thus, to a great extent, Dworkin’s post was a futile exercise.  Almost from the day on which Obama won the 2008 election, Republicans have turned politics into a totally emotional issue at the heart of which is raw hatred for both Obama and all who sail under his flag.  Even the Supreme Court is now divided by partisan ideology to such an extent that it was easy for Dworkin to pick apart those questions posed by conservative Justices to challenge the legal arguments in favor of the legislation under question.

In a historical context such emotionality in the Judiciary should not surprise.  Emotions ran just as high over the question of civil rights.  This was a problem even before the outbreak of the Civil War, and it is hard to say that the problem has yet been put to rest.  Nevertheless, there is something depressing about such a blatant situation in which Justices of the Supreme Court have essentially assumed the role of agents of vendetta.  It is a reminder of the extent to which corruption has spread through the entire Federal Government;  and, as that spread continues, the opportunities to reverse it will become fewer and less effective.

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