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The New York Times/ - Politics, Seg, 02 de Abril de 2012
CLIPPING INTERNACIONAL (Supreme Court)
Justices’ Cerebral Combativeness on
Display
WASHINGTON — The Supreme Court is usually the
most remote and mysterious branch of American
government. Not last week.
Over three days of intense arguments on the future of
President Obama’s health care law, the public got a
vivid glimpse of an institution at once immensely
powerful and intensely human, one packed with brainy,
funny and assertive justices prepared to confront and
decide the most urgent issues of the day.
“It seemed that they were at an intellectual feast,” said
David J. Garrow, who teaches history and law at the
University of Pittsburgh. Indeed, the justices exhibited
an appetite for debate that seemed to wear out the tag
team of lawyers who appeared before them.
A decision in the case is expected by late June. In the
meantime, the court will hear arguments in a challenge
to Arizona’s tough immigration law, and it will soon
confront cases concerning affirmative action in higher
education and a request to reconsider the Citizens
United campaign finance decision. Cases on voting
rights and same-sex marriage are not far behind.
It can seem that the court is prepared to decide every
major controversy in American life. “They are quite
willing to flex the muscles of judicial review,” Thomas
C. Goldstein, a Washington lawyer and the publisher
of the Web site Scotusblog, said of the justices.
Last week’s arguments illuminated two different
aspects of the court led by Chief Justice John G.
Roberts Jr.: an intellectual side at ease with legal
issues of colossal complexity, and a pithy,
conversational side that can frame issues in accessible
nuggets.
The two facets emerged on different days. The
arguments on peripheral issues, on Monday and
Wednesday, were often highly technical.
“I am a law professor and have been quite interested
in this case,” said Benjamin H. Barton, who teaches at
the University of Tennessee. “I had a pretty hard time
following those arguments.”
The crucial session on Tuesday, on the
constitutionality of the law’s requirement that most
Americans obtain health insurance or pay a penalty,
was different.
“The justices went right to the heart of the matter in a
way that most Americans can understand,” Professor
Barton said.
Justice Ruth Bader Ginsburg, for instance, crisply
made the administration’s case for why the health care
market warrants special treatment. The point, she said,
was not “my choice whether I want to buy a product to
keep me healthy.” Rather, it is “the cost that I am
forcing on other people if I don’t buy the product.”
Justice Antonin Scalia made a contrary point with
equal vigor. The powers not granted to the federal
government by the Constitution belong to the states
and the people, he said. “And the argument here,” he
went on, “is that the people were left to decide whether
they want to buy insurance or not.”
The court released audio recordings each day,
allowing the public prompt access to the substance
and tenor of the arguments, unmediated by scholars
and commentators.
There was an important lesson in the arguments, said
Lee Epstein, who teaches law and political science at
the University of Southern California.
“The teachable moment here isn’t for the public,” she
said. “It’s for the law professors and elite lawyers who
were all predicting a slam-dunk for the Obama
administration.”
The verbal and analytic skills the justices brought to
the argument were a reflection of what sort of person
gets nominated to the Supreme Court these days. As
a new study from Professor Barton demonstrates, the
current court is distinctively different from earlier ones.
Before they joined the Supreme Court, for instance,
its current members spent less time in private practice
and more time in Washington than any previous set of
nine justices.
The current justices also spent more years at college
and law school in the Ivy League or at Stanford than
had any previous court. Indeed, every current justice
attended law school at Harvard or Yale (with Justice
Ginsburg transferring from Harvard to Columbia).
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