An Observation about SCOTUS, PPACA and Politics

What we are seeing at the moment is the expected political churn that accompanies something as big as the PPACA case

I have noted a number of pieces such as the WSJ‘s Obama vs. Marbury v. Madison  (and numerous similar pieces at Memeorandum at the moment) or even Doug Mataconis’ piece here at OTB yesterday, On The Phony Charge Of “Judicial Activism” From ObamaCare Supporters and it occurs to me that while various valid arguments/ideas are being put forth in these pieces, the fact of the matter is what we are seeing at the moment is the expected political churn that accompanies something as big as the PPACA case.  Indeed, what I find interesting is that really, whether it is the president making his case, or Doug noting his supporters asserting theirs, is that really all we are seeing here is a continued recapitulation of the same basic arguments over interpretation of the commerce clause as well as a more general theoretical debate about what such abstractions as “limited government” mean as well as a general debate about the scope of congress.  We can throw is claims and counter-claims about “judicial activism” and whatnot, but the basic arguments remain the same post oral arguments as they did before they were given.

Further, while I understand why opponents of the PPACA would dislike President Obama’s public statements on this matter, we have to keep in mind that this is just normal politics.  He is trying, as one would expect, to marshal as much public opinion in his favor as it possible because he is aware that while the Court appears to exist independently of politics, the fact of the matter is that the Justices do pay attention to public opinion.   There is also a little thing happening in November that drives the rhetorical bus.  President Obama is focusing on immediate politics and candidate Obama is trying to construct a narrative for use in the campaign.

This all boils down to the fact, as it generally the case, that politicians and pundits say a lot of things, but truly evaluating the significance of what is said requires considering things like audience and actual power.  The bottom line of the PPACA is going to be decided within the institutional framework of the constitution system and no matter what happens, a lot of people aren’t going to like it (welcome to politics and governance).  However, that a lot of political actors are acting like political actors strikes me as, well, the sound and fury of politics signifying a lot less than is being ascribed to it (for example).

Perhaps I just feel this way because I have been so busy over the last week that I have looked at this story more from afar than I usually would.  And, for the record, I am not stating that the rhetoric being used is not worthy of comment, but rather I am just struck as to the degree to which we (myself included at times) seem to be surprised politicians and their allies would engage in politics.

A few things that are certain:  I have firmly come to the conclusion that “judicial activism” simply means “court rulings I don’t like”* and that one’s relative faith in elected versus unelected institutions is heavily predicated on one’s policy preferences.  As such, I am hardly surprised by the President’s focus on elected institutions and the WSJ‘s profound respect for the role of the Supreme Court.  The positions are likely to be flipped at some point in the future.  Finding people who are truly consistent on these matters, especially among those for whom politics is a vocation, is a rare thing.

Of course, all this is a good reminder that despite the exalted status we often ascribe to the Court that really that process is, to adapt Von Clausewitz, politics by other means.

—-

*This has been hammered home to me living in Alabama where I have seen court races, especially for Supreme Court, feature candidates who simultaneously decry “judicial activism” whilst promising, often in the same commercial, policy preference based outcomes if they are elected to the bench.

FILED UNDER: Campaign 2012, Health Care, Law and the Courts, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Hey Norm says:

    “…*This has been hammered home to me living in Alabama where I have seen court races, especially for Supreme Court, feature candidates who simultaneously decry “judicial activism” whilst promising, often in the same commercial, policy preference based outcomes if they are elected to the bench…”

    For similar see; Scalia, Anthony Gregory

  2. Curtis says:

    I totally agree that we think of “Judicial activism” as “rulings we don’t like.” Rulings we like are called “justice.”

    The good news is that whatever they decide, it won’t be among the worst decisions in the court’s history, and the country has survived. Dred Scott is not walking through that door.

  3. James says:

    Steven,

    Well written. I particularly liked the point that

    […] really all we are seeing here is a continued recapitulation of the some basic arguments over interpretation of the commerce clause as well as a more general theoretical debate about what such abstractions as “limited government” mean as well as a general debate about the scope of congress.

    This is why I prefer to read your pieces on issues, rather than Doug’s.

  4. Ron Beasley says:

    I totally agree that we think of “Judicial activism” as “rulings we don’t like.” Rulings we like are called “justice.”

    That’s the point I was making on Doug’s post yesterday. And yes the Constitution does have to be interpreted and that will be on the basis of ideology hence political. We live in a very different world and even some of words don’t have the same meaning.

  5. Neo says:

    I believe Obama will relive one of those “FDR moments”.

    There was Humphrey’s Executor v. United States, Schechter Poultry Corporation v. United States, U.S. v. Butler, Carter v. Carter Coal Co., and Morehead v. New York ex rel. Tipaldo.

    All cases where “New Deal” legislation was struck down by the SCOTUS, often with the three liberal leaning justices, Louis D. Brandeis, Benjamin N. Cardozo and Harlan F. Stone, in the majority.

  6. Wayne says:

    This goes more on one’s mentality than anything. If all a person cares cares about is passing laws that they agree with, you point is correct. However there are many of us who care about principle things like limited Federal Government power, States rights, individual rights, etc. There have been laws on the federal level that I agree with on its intent but disagree with on having at the federal level. I would hope that the Court would strike down an unconstitutional law even if I agree with its intent.

    Abusing and warping laws or the courts system to get what you want in a particular case ends up corrupting the system. It does more harm than good in the long run.

    Understandably many want to win at all cost. Trying to make excuses for yourself as being one of those who do that by claiming “everyone is like that” is not only not true but only accomplish fooling yourself.

    Before someone claims I the one fooling myself, there are many past post on controversial issue to support my claim including the Schiavo and O.J cases.

  7. PGlenn says:

    @Ron Beasley:

    Your comment doesn’t necessarily follow from Taylor’s post.

    Taylor remarked that, “Finding people who are truly consistent on these matters, especially among those for whom politics is a vocation, is a rare thing.”

    If we accept the premise that such persons are rare, but not non-existent, then some SC justics might exercise relative legal interpretive consistency; moreover, I’m not sure if Taylor meant to say that SC justices have politics (rather than the law) as their vocation.

    No doubt, politics enters into their deliberations, as they would for anyone engaged in the intersections of policy and constitutional law, but politics is not their vocation, IMO, and we might expect legal interpretive consistency to be trait found more often among the likes of SC justices as compared to politicians, activists, and political junkes – who I suspect are the real targets of Taylor’s accusation that “judicial activism” = rulings we don’t like.

    Of course, Taylor might believe that this particular mix of SC justices includes only a few, or even none, who maintain legal interpretive consistency, but I’m not prepared to make a universal law out of your suggestion and neither, I suspect, is Taylor.

  8. Tsar Nicholas says:

    Sorry, Chief, but here I must dissent.

    After the Hamdan case was argued but before it was decided did Bush 43 get up to deliver a press conference in which he stated that if the SCOTUS were to strike down his detention and military trial policies for those housed in Gitmo it would be an unprecedented move, a case of “judicial activism,” and an infringement upon his executive powers as wartime commander in chief? Um, no. Of course not. No rational adult holding the presidency would have done that. The decision was handed down. Bush issued a statement that he disagreed with it but would abide by it. Then the administration lobbied Congress for a new legislative framework for military trials of al Qaeda detainees and indefinite detentions, which ultimately passed what at that point in time was a Democrat-controlled Congress, mind you.

    Nobody on the right announced in advance of the Kelo ruling that if the Court upheld that form of eminent domain it would lead to anarchy. The decision was handed down. People disagreed with it. Then GOP state legislatures around the country passed bills to render it moot in their particular states.

    Neither Bush nor Gore were out there in advance of the Bush vs. Gore decision assailing the decision if it didn’t go their particular way.

    Clinton didn’t give any press conferences in advance of any important SCOTUS rulings to assail said rulings before they even were decided.

    Bush 41 didn’t give any press conferences in advance of Planned Parenthood vs. Casey or in advance of the Texas vs. Johnson flag burning case.

    Reagan never assailed in advance any SCOTUS decisions.

    Nixon didn’t say anything disparaging of the SCOTUS in advance of the decision in the Watergate tapes case.

    I could go on for days, but I’ll stop there. You get the point. I presume.

    What this latest nonsense from the left amounts to simply is that of leftists acting out, well, like leftists. They have to get their way. If they don’t get their way they throw tantrums. If they think they might not get their way they throw tantrums. It’s really that simple.

  9. PGlenn says:

    Tsar NIcholas, excellent point. Of all the analysts who’ve made the argument that Obama’s comments were “typical politics,” not one has to provide a comparable example (prior to the ruling and/or including an attempt to intimidate the Court prior to making its ruling). Either we’re being treated to a form of consistency much more common than legal intepretive consistency – lazy argumentation – or there is not such example. I don’t know, but I’m also not persuade by Taylor et al’s point.

  10. @Wayne:

    There was news this week about “Curveball,” his lies, and how the Bush administration spruced up his information to make the case for war.

    It is interesting and very sad to me that we all let that one blow by. I personally think abuses of democracy in the run-up to war are as bad as you can get.

    But no, providing medical care is worse.

  11. Hey Norm says:

    TNick…
    First, if I’m not mistaken, Obama was responding to a question. It’s not like he scheduled a speech in order to try to intimidate the refs. He may have been working the refs…but someone opened the door for him.
    And secondly…how do you know that none of those other people made no comments regarding those other deliberations. You don’t think they did. But you did make the claim…so now prove it to me.

  12. Hey Norm says:

    You did say you could go on for days.
    Prove just one of them was silent regarding ongoing deliberations.

  13. Hey Norm says:

    PGlenn…feel free to help TNick.

  14. Hey Norm says:

    @ JP…

    “…spruced up his information…”

    That cracks me up…his lies weren’t enough…the Bushies needed to embellish his lies.
    Yet the Wingnuts are up in arms over making a small percentage of the population buy insurance.
    You can make up how zany they are.

  15. Brummagem Joe says:

    By and large I agree with your comments Steven but judicial activism surely extends beyond mere perception. If the SCOTUS rejects the ACA on a party line 5/4 vote there is no question that they will be making policy. This decision will affect US healthcare for the next ten years at least. And before any of the usual suspects jumps in they will not be making policy if they uphold ACA. The policy was made by the administration and congress and they will be merely affirming it passed constitutional muster. Obviously there is a lot of political positioning going on. Conservatives like Doug and the right wing noise machine have convinced themselves this is in the bag whereas a lot of Democrats are doing their usual pantywaister act because people like Scalia asked some entirely expected fatuous questions. In fact no one has any idea how this is going to play out but au contraire to Doug’s assurances I’m fairly certain the consequences are going to be serious at all kinds of levels. To take but one example as someone said the other day to start with it will be a cold day in hell before another conservative justice gets confirmed and this means the filibuster is going to become history.

  16. @Brummagem Joe: Well, all court rulings influence policy. I don’t consider that fact to be a defining element of “judicial activism.”

    (And yes, I concur: the ramifications of the decision/decisions will be huge, one way or another).

  17. Hey Norm says:

    Policy changing due to a ruling and ruling in order to effect policy are different things.

  18. An Interested Party says:

    This is just like when some were criticizing the President for somehow “getting involved” in the Trayvon Martin case…there, just as here, reporters asked him a question…I suppose in both cases, he could of just said, “No comment.” But I bet his critics would have found something wrong with that answer too…and this continuing shock that politics is taking place….I mean, some people act as if they need the smelling salts and the fainting couches before they hit the floor…

  19. @Hey Norm:

    Policy changing due to a ruling and ruling in order to effect policy are different things.

    Perhaps. I think this just gets back to the “eye of the beholder” problem with “judicial activism.” One’s view on the situation is going to be predicated rather heavily one’s basic philosophy/ideology combined with policy preferences.

  20. Racehorse says:

    The problem is the elected leaders and judges who evidently haven’t read or don’t remember the US Constitution. Evidently some of them spent more time in college studying the “Communist Manifesto” than the Constitution. A course on the Constitution should be required in high school. Questions about the Constitution should be on the SAT (maybe they are, I would hope). Jefferson and Franklin would not recognize the government we have today. Andrew Jackson would be shocked.

  21. James says:

    @Racehorse: A black man is president. Yes, I suppose Mr. Jackson probably would be shocked.

  22. mattb says:

    @Racehorse:

    Jefferson and Franklin would not recognize the government we have today. Andrew Jackson would be shocked.

    Hyperbole much?

    Of course the challenge is that there are many aspects of today’s world that Jefferson and Franklin would not recognize (at least at first). That’s the truth of progress.

    The brilliance of what they and the other founders wrought is a political system, which, all things considered, has weathered those changes (not to mention external wars and an internal insurrection) rather well.

    And that weathering is thanks in no small part to the flexible framework they helped create.

  23. Brummagem Joe says:

    @Steven L. Taylor:

    Well, all court rulings influence policy. I don’t consider that fact to be a defining element of “judicial activism.”

    Well they may influence it but they shouldn’t be making it and that is what they would be doing if they overturned the ACA. And if effectively setting policy doesn’t define judicial activism I’m not sure what does. Acts of congress like the healthcare law are presumed to be constitutional and given the courts traditional deference to congress in matters of policy, particularly those affecting interstate commerce, it should be a very unusual step for unelected, unnacountable judges to over rule the work of the democratically elected branches of govt.

  24. Brummagem Joe says:

    @James:

    A black man is president. Yes, I suppose Mr. Jackson probably would be shocked.

    Not to mention Mr Jefferson and every other signer of the Declaration of Independance.

  25. Racehorse says:

    @mattb: Great answer: very thoughtful and positive.

  26. Brummagem Joe says:

    @Racehorse:

    Great answer: very thoughtful and positive.

    Er…you mean he cut you off at the knees…LOL

  27. PGlenn says:

    Hey Norm, you’re making my point for me;

    Taylor: this is typical politics . . .

    PGlenn: can you cite at least one other similar example that would support your claim?

    Hey Norm: Hey, PGlenn, “prove it” . . .

  28. Hey Norm says:

    PGlenn…
    Reading comprehension problem.
    TNick made a huge, extremely dubious claim which you applauded.
    I asked for proof of the claim which you supported.

  29. Dazedandconfused says:

    @Racehorse:

    Jefferson would be especially appalled. He despised the concept of Judicial Review.

  30. Racehorse says:

    @Brummagem Joe: Nice reply: concise and clear.

  31. An Interested Party says:

    Nice reply: concise and clear.

    It also had the benefit of being true…

  32. @Brummagem Joe: I suppose it depends on what you mean by “making it.”. Was Brown v. Board of Education making policy? Miranda?

    One could argue that both were proper applications of the constitution, but they clearly helped set policy. (and in the case Of Brown, defied elected institutions. )

    Note: I think that the mandate is constitutional. I also think that the Cpuet has the constitutional authority to strike it down

  33. Septimius says:

    @Hey Norm:

    And secondly…how do you know that none of those other people made no comments regarding those other deliberations. You don’t think they did. But you did make the claim…so now prove it to me.

    You want him to prove that someone didn’t make a comment? That’s not how it works.

  34. PGlenn says:

    Hey Norm: problem with basic logic?

    TNick supported his claim(s) with numerous examples, none of which you refuted – i.e., he doesn’t need my help (he already did the work), especially concerning your request that he prove a negative.

    Meanwhile, Taylor cited zero examples supporting his claim.

  35. @PGlenn:

    Meanwhile, Taylor cited zero examples supporting his claim.

    If I understand you correctly: you are asserting that no president has ever responded to a question about a Supreme Court case? And you seem to therefore think that my post is predicated on conjuring a presidential statement on SCOTUS activity?

    Am I understanding your position correctly?

    And if I conjure a president commenting on a pending SCOTUS case what do I win? (Seriously: you are reading this post rather narrowly if you think the claims therein are predicated on so narrow a proposition).

  36. @PGlenn:

    TNick supported his claim(s) with numerous examples, none of which you refuted

    Well, more accurately he made a couple of assertions. I am not sure that qualifies as especially useful examples, let alone refutations.

    Further, he mischaracterized both what Obama did (for example, he didn’t hold a press conference to comment on this case). He was holding a press conference in the context of a meeting with the President of Mexico and the PM of Canada and was asked about the SCOTUS case. As someone noted above: was he supposed to say “no comment”? Regardless, this does not fit TN2’s characterization. Also, I must have missed where the president said there would be “anarchy”.

    In general, I would characterize the president’s rhetoric (which is all it is, which is my point) as fairly typical in this type of context. Further his statement fits my basic point: he is concerned about “judicial activism” and focusing on legislative action because it is in his political interest (which is fundamentally the thesis of my post).

  37. Hey Norm says:

    @ Septimius and PGlenn…
    TNick made claims he can’t back up and you act as though it’s fact.
    They are baseless assertions. If your argument is based on baseless assertions…well that means your argument is baseless.

  38. An Interested Party says:

    Further, he mischaracterized both what Obama did (for example, he didn’t hold a press conference to comment on this case).

    What!? Tsar Nicholas is being disingenuous? I don’t believe it! Meanwhile, this is for him and those like him who appear to be so agitated that the President, a politician, is being political…

  39. Septimius says:

    @Hey Norm:

    He made a claim that previous presidents did not make similar comments to what Obama said about the Supreme Court. You want him to prove it. That’s a logical fallacy commonly known as proving a negative. He can’t prove someone didn’t say something. It’s impossible. I realize that logic isn’t your strong suit, but that’s really lame.

  40. PGlenn says:

    @Steven L. Taylor:

    No, I was saying that you did not support your assertion with any examples – the assertion being that it was typical politics for Obama to have commented on a pending SC case in a manner that might be described as attempting to intimidate the Court and/or influence the decision. Even if he was asked the question, he didn’t have to anwer in such a way – Obama is responsible for the comments, whether he was prompted or not. Besides, how do we know for sure that there was no coordination between the reporter and Obama’s staff in asking that question?

    Perhaps the above question pertains to a “narrow” aspect of your post, but sometimes arguments fall apart when narrow parts of them are removed.

  41. @PGlenn:

    I suppose if you don’t understand the point I am making, we are just going to have to agree to disagree (and to repeat myself):

    In general, I would characterize the president’s rhetoric (which is all it is, which is my point) as fairly typical in this type of context. Further his statement fits my basic point: he is concerned about “judicial activism” and focusing on legislative action because it is in his political interest (which is fundamentally the thesis of my post).

    The notion that presidents have never had tangles with the Supreme Court is problematic, since they go back to Jefferson at least. And then there is the whole FDR bit.

  42. Brummagem Joe says:

    @Steven L. Taylor:

    I suppose it depends on what you mean by “making it.”. Was Brown v. Board of Education making policy?

    Undoubtedly, but do you really see equivalence between Brown which was about civil rights and the overturning of a piece of legislation passed under two years ago by a Democratic majority in congress and whose constitutionality is founded on over 70 years of commerce clause precedent. You’re comparing apples and pears here in terms of the courts involvement in policy making. A decision to overturn would essentially be deciding what governments can do. Particularly Democratic controlled govts.

  43. @Brummagem Joe:

    A decision to overturn would essentially be deciding what governments can do.

    Yes, but like it or not, that’s what the power of judicial review is: deciding, based on the interpretation of the constitution of at least 5 justices, what the rest of the government (including state governments) can do or not do.

    Brown did more than overturn Plessy, it overturned a lot of state-level law and policy.

  44. Brummagem Joe says:

    @Steven L. Taylor:

    Brown did more than overturn Plessy, it overturned a lot of state-level law and policy.

    Obviously you don’t see any difference between a longstanding matter of civil rights and a less than two year old piece of economic legislation. Incidentally back in 1964 the court upheld the Civil Rights Act which used the commerce clause to mandate integration of hotels and restaurants.

  45. @Brummagem Joe:

    Obviously you don’t see any difference between a longstanding matter of civil rights and a less than two year old piece of economic legislation

    Yes, there are clear difference but not on the dimension under discussion. The court clearly has the power, in both cases, to decide constitutionality as it sees it. This isn’t about my preferences, but about the basic institutional parameters.

    Again:

    like it or not, that’s what the power of judicial review is: deciding, based on the interpretation of the constitution of at least 5 justices, what the rest of the government (including state governments) can do or not do.

    The topic under consideration is not the issue nor is the time span. All that matters is that the case can make it through the process and then 5 justices think X or Y.

  46. PGlenn says:

    @Steven L. Taylor:

    You’re trying to bury your most important claim in a vague generality, but yes I get the point that your trying to make (more like avoiding):

    In general, I would characterize the president’s rhetoric (which is all it is, which is my point) as fairly typical in this type of context.

    What the president said, by this logic, is just generic rhetoric within a generic context: i.e., it makes no difference whether this rhetoric is expressed prior to the ruling, or after it, or is made in the Rose Garden flanked by foreign dignitaries, or is made on the campaign trail; it makes no difference whether the rhetoric implies a threat or attempts to intimidate the Court. It’s all just rhetoric and other presidents have expressed rhetoric before, haven’t they?

    Your vacuous explanation is quite convenient, though, if you’re unable to find any examples of a president who made similar comments, in a similar context, prior to a SC ruling.

  47. @PGlenn:

    1. You are missing the basic point about rhetoric in this context.

    2. You aren’t really making an argument: you are telling me to go on a quote hunt. That’s not the same thing.

  48. PGlenn says:

    @Steven L. Taylor:

    You’re right about that – I’m not making an argument. I’m saying that one of the key points of your argument is unsupported. I don’t expect you to do anything, including going “on a quote hunt.” I’m just saying that your point is unpersuasive in the absense of any supporting examples.

    But if you want me to do some the work, I’ll summarize your key point [with my questions/concerns in brackets]:

    Further, while I understand why opponents of the PPACA would dislike President Obama’s public statements on this matter, we have to keep in mind that this is just normal politics.

    He is trying . . . to marshal . . . public opinion in his favor [which might influence the Court’s deliberation concerning PPACA] . . . focusing on immediate politics and candidate Obama is trying to construct a narrative for use in the campaign.

    The presidents public statements were not out of character with “normal politics” [because] politicians and pundits say a lot of things [i.e., “normal politics” = anything and everything and therefore has no bounds], but truly evaluating the significance of what is said requires considering things like audience and actual power [okay, in this case, the audience/context was an official Rose Garden press conference, in which the president was flanked by two foreign leaders, not a campaign speech].

    The bottom line: PPACA is going to be decided within the institutional framework of the constitution system [although you suggested above that, if the president can shift public opinion in the next couple of months, it might influence the Court] and no matter what happens, a lot of people aren’t going to like it (welcome to politics and governance) [here you’ve shifted the argument from whether the president’s public remarks represented “normal politics” to describe another aspect of “normal politics,” i.e. public dissatisfaction in response to policy decisions].

    However, that a lot of political actors are acting like political actors [I agree that A = A; but we still have no reason to believe that Obama’s statements = A] strikes me as, well, the sound and fury of politics signifying a lot less than is being ascribed to it.

    . . . I am just struck as to the degree to which we (myself included at times) seem to be surprised politicians and their allies would engage in politics [anything a politician does is “politics”; the question is whether the president’s public comments fit with any previous similar examples of “politics”].