ObamaCare And The Supreme Court’s Legitimacy
Is the Supreme Court risking it's legitimacy if it strikes down the individual mandate?
Echoing a theme I’ve heard from many on the left who were caught off guard by the apparent receptivity of the Supreme Court Justices, specifically including Anthony Kennedy, to the arguments against the constitutionality of the PPACA’s individual mandate, Jonathan Cohn contends that if the Supreme Court strikes down the mandate it will be risking its own legitimacy:
Nobody knows how the justices will rule. And nobody can know, not even the justices themselves. On Friday morning, perhaps by the time you read this, they will meet privately to take their first vote. More often than not, this first vote determines the final verdict. But there are exceptions and Anthony Kennedy, on whose decision the outcome presumably depends, has a reputation for long deliberation and changes of heart—particularly in major cases like this one.
That’s good. With the result apparently in doubt—smart money still says the chances of the full law surviving are about 50-50—Kennedy should think long and hard about how he wants the Court to rule. So should Chief Justice John Roberts, who appeared more skeptical of the government’s case during oral arguments but nevertheless indicated that he, like Kennedy, understood the government’s premise—that health care was a special market, perhaps requiring special intervention.
If that concern is not enough to sway the chief justice, than perhaps his frequently professed concern for the court’s respectability will.
Even now, I have trouble wrapping my mind around what I saw in the courtroom this week and what a majority of the justices may be contemplating. Kennedy’s second question, the one that so unnerved supports of the law, was whether the government had “a heavy burden of justification to show authorization under the Constitution.” But the heavy burden in this case is on the justices threatening to strike down health care reform. They have not met it.
Scott Lemieux, who would clearly prefer that the Court uphold the mandate, disagrees:
Striking down the ACA isn’t even testing the far reaches of the Court’s power. The Court would have substantial support in Congress and, at least as of now, would appear to have the support of the majority of the public. I wish it weren’t so, but I don’t think the Court would face any significant loss of public legitimacy should they strike down the ACA.
I think Lemieux has the better argument here. For one thing, how one reacts to whatever decision the Court hands down in June is going to depend primarily on whether one believes that the PPACA is a good idea. If you support the law, then a decision striking down the mandate (and perhaps the entire law) is going to be seen as illegitimate no matter what reasoning the Court uses to reach its decision. Legal analysts who write 3,000 word essays denouncing the decision will be hailed as geniuses, while those that argue that it was correct will be denounced as extremists or “wingnuts” not matter what their academic credentials might be. If you oppose the law, then your reaction is likely to be the same if the Court ends up upholding the mandate. This is how the general public, and of course the partisans, always react to legal decisions on controversial issues whether its the PPACA, or abortion, or the question of whether or not Westboro Baptist Church protests and flag burning is protected by the First Amendment. For the most part, the question of whether or not the decision is correct legally is barely touched upon as each side seeks to advance their partisan agenda on one point or another. So, it will be entirely unsurprising when, in late June, the usual suspects react in the usual manner.
However, this is an entirely different question from whether or not the Court’s legitimacy is threatened. As Lemieux notes, recent polling on the issue has shown that large segments of the public believe the individual mandate is unconstitutional and that the Supreme Court should toss the law out. To be sure, these opinions are seldom informed by a deep understanding of Constitutional Law, however they do indicate that if the Court does strike the law down that the reaction from the general public, as opposed to the media’s preferred legal commentators, is unlikely to be outrage at all. So, the idea that the Supreme Court is taking some kind of political risk by possibly striking the law down isn’t supported by the evidence.
Jonathan Alter puts it this way:
Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama’s signature legislative accomplishment have suggested that doing so will undermine the Court’s credibility. They suggest that a decision striking down the mandate would be another Citizens United or, worse, Bush v. Gore. Given the mandate’s unpopularity, this is a hollow threat. If anything, the justices should be more wary of another Kelo, of upholding an assertion of government power that most Americans find repugnant. This is not to suggest the justices should base their decision on popular opinion, for the Constitution should be their guide. It is, however, to suggest that the Court’s credibility is at risk when it fails to constrain unconstitutional assertions of government power.
Alter has a point. The Kelo decision was one that raised ire on the right and the left and led citizens across the country to lobby their state legislatures to restrain the power of Eminent Domain so that there wouldn’t be another Suzette Kelo. At the same time, though, it’s been seven years since that decision was handed down and the Supreme Court doesn’t seem to have suffered significantly from a decision that, while it was a correct application of existing precedent was also a tragically missed opportunity to undue the effect of more than three decades of horrendously bad precedent on the power of Eminent Domain. The same goes, I would argue, for Bush v. Gore and Citizens United which may continue to serve as excellent fundraising opportunities for so-called “progressive” political causes but which haven’t had any noticeable impact on the public’s opinion about the Court or it’s “legitimacy.”
Cohn makes another point, which as also been a frequent topic of discussion in the days since the Court concluded oral argument, about the likelihood that, however it turns out, this case it likely to be yet another 5-4 decision:
Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism. But, in two key repsects, they were different from a potential ruling against the Affordable Care Act.
Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majorities—in these cases, state legislators who’d passed laws enforcing segregation and prohibiting abortion. The justices’ authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.
Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to four—a bare majority. And it would be a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving.
It’s interesting that Cohn picks Roe and Brown as examples, actually.
In the case of Brown, it’s true that Chief Justice Warren worked hard to pull together a unanimous ruling in part because he recognized that a decision that not only struck at the heart of Jim Crow in the South but would also have an impact in other parts of the country on a topic that the nation was just beginning to deal with would be controversial. When you learn about the case in history class, or even in law school, the importance of this unanimity is considered an important point. But, it’s not clear that it really made a difference. A unanimous Supreme Court decision didn’t stop pretty much every former member of the Confederacy from resisting integration. It didn’t stop a certain Governor of Alabama from declaring support for “Segregation today, Segregation tomorrow, Segregation forever.” It didn’t stop Prince Edward County, Virginia from shutting down its public schools in an effort to prevent integration. The battle to end Jim Crow and erase the horrible mistake the Court had made in Plessy v. Ferguson didn’t end on May 17, 1954. In fact, the Brown case itself wasn’t over on that day and returned to the Supreme Court two more times to resolve legal issues, and there were dozens of other cases dealing with school integration, busing, and court supervision of school districts, all the way up to the early 1980s. In the end, that unanimous decision in 1954 is a significant historical achievement but, practically speaking, it’s hard to say that it had any more impact than an 8-1 or 7-2, or even 5-4, decision might have had.
In the case of Roe, Cohn’s argument is even weaker. This was a 7-2 decision, but the real impact of Roe v Wade was that it ignited a political and legal battle that continues to this day and for which there does not seem to be a middle ground to which the parties who feel strongly about the issue at hand can agree. I’ve read Roe more times than I can count over the years and, in all honesty, as a piece of legal reasoning it doesn’t really stand up, and I’m saying that as someone who as a policy matter supports the idea of choice on the issue of abortion at least up until the point of fetal viability. It’s one of those decisions where you either agree with the outcome or you don’t. Given the fact that social trends in 1972 were moving in favor of legalizing abortion at the state level, it may have been better for the country as a whole if the Court had demurred from deciding the Constitutional issue in Roe, but that’s water under the bridge at this point. The real point is that here we have a 7-2 decision on a controversial issue that, far from uniting the country actually ended up giving birth to a political movement dedicated to overturning it.
It’s also worth noting that some of the Court’s most unfortunate decisions were decided by lopsided majorities. Dred Scott v. Sanford was a 7-2 decision, and it set in motion a course of events that made the Civil War inevitable. Plessy v. Ferguson was a 7-1 decision, and it legitimized Jim Crow. Korematsu v. United States was a 6-3 decision, and it legitimized the herding of Japanese-Americans into concentration camps and the confiscation of their property. The mere fact that a large majority of Justices support a decision says absolutely nothing about whether that decision is the right decision and even less about how the nation will react to that decision.
So, on some level, whether a case is decided by a 5-4, 6-3, 7-2, 8-1, or 9-0 majority has almost no connection to the political reaction that it creates. Moreover, considering how polarized our country is these days the fact that our nation’s highest court, whose members are selected by the President and confirmed by the Senate, is also polarized on controversial issues should not surprise, or shock, anyone.
If the Court strikes down the mandate, I fully expect Cohn to be among those spending the summer writing about how the Supreme Court has surrendered it’s legitimacy. But for a person who is accusing the c0nservative Justices of naked political thinking, his thinking is just as nakedly political. His reaction to the decision, like the reaction of everyone else who has turned all of American life into a political battle, will be based solely on whether or not the Court decides the case the way that the thinks they should. That’s not the way the law is supposed to work, but it is the way partisans react to legal decisions they don’t like.