By: J. Randolph Evans

For three days, the United States Supreme Court heard arguments from lawyers about the healthcare law (the “Patient Protection and Affordable Care Act”) passed by the Congress and signed by President Barack Obama in 2010. The courtroom was packed with dignitaries including the Attorney General, state attorneys general, Senators, Members of Congress and others. Outside the courtroom, protesters of every sort gathered to make their opinions known to anyone who would listen. It is the nature of the United States’ system of governance.

Some might think that Congress passes laws and the President signs laws and that is the end of it. Instead, laws, especially landmark legislation, involve all three branches of the government – the legislative, executive, and judicial branches. The Congress creates laws. The President decides whether to sign the legislation or veto the legislation. Then, the courts (eventually the Supreme Court in some situations) decide whether a law is ‘Constitutional.’ In effect, the Court gets to decide whether the law is valid or invalid.

This ‘Constitutional’ testing by the Court has been the subject of some controversy over the years. Politicians are apt to criticize the Court based on which issue the Court is deciding. So, if the Court is questioning the validity of a law that Republicans like, then Republicans line up to criticize the Court as being an activist court. If the Court is questioning the validity of a law that Democrats like – such as the healthcare law – then the Court is political.

In fact, the Court’s role is to serve as the safety net, making sure that the rights of the minority as guaranteed by the United States Constitution are protected from the will of the majority. It is a sacred responsibility that is necessary to maintain an open and free society.

Some believe that the Court has gone too far in wielding its Constitutional gavel to decide such things. Indeed, the subject of the role of the Court has on occasion been part of the campaigns of Presidential candidates. Regardless, like an umpire behind the plate at a baseball game, there is always room for criticism by people unhappy with what the Court does and how it does it. But, it has to do its job.

Interestingly, there are ways to overturn a Supreme Court decision. Basically, if the Court holds that a law is unconstitutional, then the remedy is to amend the Constitution. It has been done. The Fourteenth Amendment overturned a number of Supreme Court decisions. Admittedly, this is a largely impractical solution since it requires two-thirds of the Congress (or a national constitutional convention) and three-fourths of the states (which must ratify the amendment).

Of course, in the real world, amendments to the Constitution are rarely a practical solution. It is difficult to get a simple majority, much less two-thirds, of the Congress to agree on anything. Getting three-fourths of the states to agree is probably unthinkable in today’s modern political world. So, in effect, the decision of the Supreme Court is, practically speaking, final.

At the state level, this is much less the case. Here in Georgia, for example, the constitution has often been amended to overturn a Georgia Supreme Court decision invalidating a Georgia law. In fact, the Georgia General Assembly just passed an amendment overturning the Georgia Supreme Court’s decision invalidating charter schools. In November, Georgia voters will decide whether to adopt the amendment. If they do, voters will effectively overturn the Georgia Supreme Court’s decision.

There is no similar path for overturning a Supreme Court decision. Instead, these are for all practical purposes final. Finality carries with it power. Although the founding fathers considered the judicial branch to be the weakest of the three branches of government, this has not been the case. Over the passage of time, the courts have in fact become the most powerful branch of government.

The nine people on the Supreme Court serve for life once selected by the President and confirmed by the Senate. While a Justice could be removed, it never happens.

In the real world, this means that a simple majority – five of the nine justices serving on the Supreme Court – can overturn an act of Congress signed by the President and supported by a majority of Americans. Whether this is a good thing or bad thing depends on who is talking and when they are talking.

Right now, everyone is talking about the healthcare law. The pressure is on the Court to actually get it right – something the Court has not always done. When the Court does speak in June 2012, it will have the final say on whether the law survives, in whole or in part, or dies. In that way, the Court now determines the health of the healthcare law.