Judicial activism became a reflexive insult against federal nominees to the courts more than 20 years ago. Yet, the thinking that shaped the last generation’s opinions lacked any historical foundation. The federal courts, and especially the Supreme Court, have been fundamentally political organizations from its earliest days. When John Marshall befuddled Thomas Jefferson with the doctrine of judicial review in 1803, he was preserving the power of the federalist perspective to shape the laws of the early republic. When Roger Taney enshrined white supremacy as the core principle of the nation in 1857, he defended our tradition of slaveholding Congresses and Presidents. The Supreme Court has always contributed to the political divisions of the United States, never fully reconciling them.
Pundits who attempt to convince the public about the objectivity and truth-seeking nature of the Court only obscure this political nature. Worse, the agenda for suggesting that the Court led by Earl Warren was more active than its predecessors only serves Roger Taney’s continuing agenda. The Warren Court did more than any other institution in the federal government to achieve the full promise of human freedom and equality. Presidents John Kennedy and Lyndon Johnson struggled to keep up with the vision the Warren Court established in 1954. Congress took nearly two decades to legislate the provisions of full equality for the nation’s citizens. Still too many states attempt to turn back the clock and establish different kinds of citizenship for different groups of Americans. “We hold these truths to be self-evident that all (people) are created equal.” The radical promise that inspired the American Revolution and the modern experiment in democracy relied on the courage of a politically active court to move forward where Congresses and Presidents failed.
The Roberts Court will fail this legacy precisely because they subscribe to Taney’s poisonous vision of the United States. Echoing too many national figures, they move to limit the federal government’s defense of every citizen’s right to life – specifically the healthy, quality of life we all deserve. Instead, millions of Americans risk being left to the vagaries of a market system that neglected and denied them for the last two generations. The Affordable Care Act is constitutional. It controls costs and provides a standard of care to provide for all Americans into the future. Our current leadership in Harrisburg wants to resist this basic obligation of government to provide for its citizens. Their entire perspective that individuals have no obligation in our republic to anyone but themselves undermined the essential, social trust that is necessary to maintain a cohesive nation. Today, on the eve of another celebration of American Independence, the Roberts Court and the entire state government of Pennsylvania needs a lesson in judicial activism from the Warren Court. As the champion of the Warren Court’s legacy, Thurgood Marshall, once said, “I celebrate the Constitution as a living document.” The Affordable Care Act is our continuing affirmation of life.
Dr. Walter Greason is a Visiting Scholar at James Madison University. You can follow him on Twitter (@worldprofessor1).