Editorial: A moment of truth for the U.S. Supreme Court

  • In this July 9, 2008 file photo, Supreme Court Justice David Souter speaks during a dedication ceremony at the State Supreme Courthouse in Concord. AP

Published: 3/8/2020 6:00:22 AM
Modified: 3/8/2020 6:00:11 AM

Gov. Chris Sununu, whether driven by election-year politics or not, was right to order New Hampshire’s attorney general to join a lawsuit filed by 18 states seeking to uphold the Affordable Care Act, which provides health insurance to some 60,000 New Hampshire residents.

The U.S. Supreme Court has agreed to rule on the constitutionality of the act, which has been under constant challenge by Republicans since its passage.

The case is one of several before the high court with potentially profound implications for the state and its residents.

Also under challenge is continued access to abortion under the 1973 >italic<Roe v. Wade>res 1< decision, state bans on public funding for religious schools and protection under the 1964 Civil Rights Act against discrimination in hiring based on sexual orientation.

The court could also rule on politically explosive issues involving Donald Trump’s tax records, and whether presidents are immune from state and local criminal investigations.

The high court that will rule on these issues sadly has lost much of its legitimacy. It cannot be counted on to give as much deference to precedent as its predecessors.

Its decline into partisanship started in 2000, when the court’s conservative majority so much as handed the presidency to George W. Bush, who like President Trump had lost the popular vote but prevailed thanks to the Electoral College.

Of the court’s current conservative majority, two were appointed by a president who lost the popular vote and four were confirmed by senators representing a minority of Americans.

The Senate’s 54 Republicans received 20 million fewer votes than that body’s 46 Democrats. That dominance by the minority made it possible for one justice, Neil Gorsuch, to occupy a seat essentially stolen from Democratic President Barack Obama.

The result is a court that is no longer viewed as above partisanship, a court that’s losing, or has lost, public trust in its fairness.

That view was strengthened by Chief Justice John Roberts’s willingness to preside over a sham impeachment trial that lacked witnesses.

The court, in the Affordable Care Act and abortion cases, is being asked to ignore precedent and rule contrary to the will of the majority.

If it does so it will further damage what credibility it still enjoys.

Only two people from New Hampshire have served on the nation’s highest court, David Souter (1990-2009) and Levi Woodbury (1845-1851). More than a century ago, Justice Woodbury said, in what could be considered a warning against judicial activism that overturns precedent: “The very idea of the law in a constitutional republic involves the requisite that it be a rule, a guide, uniform, fixed and equal, for all, till changed by the same high political power which made it. This is what entitles it to its sovereign weight.”

In 1992, Justice Souter said, “A decision to overrule >italic<Roe>res 1<’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the court’s legitimacy and to the nation’s commitment to the rule of law.”

The words of both men hold true today. We hope the current Supreme Court heeds them.

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