High Court of Interest

All for freedom and for pleasure
Nothing ever lasts forever
Everybody wants to rule the world
--Tears for Fears

Captures the current situation well.

In our government framework, the last bastion against arbitrary rule under the principle of judicial review is the Supreme Court. Even if the executive and legislative branches fail to uphold their constitutional oaths, a high court that adheres to the rule of law protects liberty.

Of course, that is not what we have. As demonstrated by the SCOTUScare decision last week, we have an interested court willing to facilitate, rather than check, discretionary rule.

The last paragraph of Justice Scalia's dissenting opinion summarizes the predicament (p. 21):

"Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court's two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation that they have performed ("penalty" means tax, "further [Medicaid] payments to the State" means only incremental Medicaid payments to the State, "established by the State" means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."

175 years ago, Abel Parker Upshur wrote that an interested court would be the icing on the cake in destroying the system of checks and balances that protect liberty. He and the AntiFeds were spot on.