People For the American Way Foundation

Scalia Tests Americans’ Faith in the U.S. Court System

The Supreme Court arguments this week were an excellent opportunity for Americans to see the importance of the courts. With the entire nation paying attention, the nine Justices had a chance to demonstrate how judges, as neutral arbiters, have a different role from political figures. While elected officials disagree over the merits of the Affordable Care Act, we assign the task of settling disputes over its constitutionality to disinterested Justices, who analyze the law regardless of how they would have voted on it were they members of Congress.

Unfortunately, what Americans saw was disappointing evidence suggesting that Justice Scalia might not be able to fulfill that most basic of constitutional roles. By referring to the “Cornhusker kickback,” raised questions about his own neutrality.

“Cornhusker kickback” was a term of abuse designed by the law’s opponents to denigrate, belittle, and delegitimize the entire bill. It was a term of abuse coined by the legislation’s enemies, one that a neutral person would be unlikely to use. There’s little ambiguity on this point; the term has no other context or function.

Can a judge adopting the opposition’s term truly be seen by the American people as a neutral arbiter who will put legal matters before his personal and political preferences? Senator Ben Nelson had a point when he said, “I am concerned that Justice Scalia’s comments call into question his impartiality and instead suggest judicial activism.”

It’s difficult to see how a judge who publicly, from the bench, and during oral arguments uses partisans’ denigrating terms for the law whose validity he is judging, has the judicial temperament needed to make people trust that he will be a neutral arbiter. When a Supreme Court Justice gives such powerful evidence that he is using his position simply to legislate his desired policies, he does great damage to the public’s faith in the entire judicial system.


ACA, Antonin Scalia, health care, Supreme Court