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.

FILED UNDER: Health Care, Law and the Courts, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. sam says:

    “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. ”

    And if it strikes down the entire law, what say you then?

    Brad Joondeph at the ACALitigation Blog:

    Risky business
    Of course, all the usual caveats apply–oral argument can be misleading, it is hard to know exactly what the justices are thinking, etc., etc.

    That said, most everyone seems to agree that the Court is headed towards invalidating the minimum coverage provision. Moreover, after listening to this morning’s argument, there seems at least a non-trivial chance that the Court will invalidate the entire ACA, all 2,700 pages, because the individual mandate is unseverable. (This would conveniently moot the Medicaid question that bedeviled them this afternoon.)

    If the Court were to take both of these steps, I fear it would thrust itself into a full-fledged political maelstrom, the intensity of which the justices are unlikely to appreciate. Justice Thomas could not care less; he has said as much, many times. Justice Scalia probably feels the same way; the Constitution says what it says, period.

    But the Court, regardless of its politics, cannot afford to be wholly oblivious to the political consequences of its decisions, at least as they relate to its own institutional standing. A decision invalidating the ACA (especially one that takes down the Act in its entirety), rendered by a predictable 5-4 split, will serve to reinforce the notion among many Americans that the Court is no more than another partisan institution, one that operates much like the other branches. That would be wrong factually, but I fear it would be the prevalent perception. And such a perception could do real lasting damage to the Court.

    The danger seems especially acute given all the other highly partisan, ideological issues presently heading the Court’s way. Consider the following cases the Court is apt to decide in the next 2 or 3 years: the Arizona immigration case (to be argued next month); the Texas affirmative action case (to be argued in the fall); the Citizens United sequel from Montana (cert petition filed earlier this week); the constitutionality of Section 5 of the Voting Rights Act (currently percolating in the courts of appeals); the constitutionality of California’s Proposition 8 banning gay marriage (currently awaiting a decision from the Ninth Circuit about an en banc hearing); and the constitutionality of the Defense of Marriage Act (also percolating in the courts of appeals).

    Again, we are just speculating at this point. But a steady stream of highly divisive, conservative 5-4 decisions, led off by a decision to invalidate the most important federal statute in a generation, could be toxic. It could take years for the Court to regain its standing among the American public.

    This is not a partisan concern. It is a concern–voiced eloquently by Chief Justice Roberts on several occasions–rooted in beliefs about the importance of the Supreme Court, the independence of the federal judiciary, and ultimately the rule of law.

    In other words, I fear the justices might be playing with fire. I sure hope they are careful.

  2. @sam:

    Unlike some people I am going to wait until I actually read the Court’s decision in three months before coming to a conclusion.

  3. It’s been a grand charade as long as I’ve been alive … we at once celebrate the impartiality of the court, and at the same time root for our favorites to pack the court with like-minded people.

  4. al-Ameda says:

    Coming relatively soon after the Bush v. Gore decision which resulted in a clearly partisan political outcome, it is no surprise that many will see a 5-4 verdict to invalidate ACA as yet another another extremely partisan political outcome.

    Fair or not, much of the public now perceives that the Court is definitely not detached from the political currents of the day, that this Court is an active ideological participant in our politics.

  5. Tsar Nicholas II says:

    Hell, that’s nothing. If you think airheaded liberals are acting out about this Obamacare kerfuffle what do you suppose will happen if the job market tanks over the summer and Obama gets ousted in November?? Yikes.

    In any event, although it’s somewhat amusing observing liberal idiots melting down in advance over a decision that hasn’t yet even been announced, the sheer inanity of this particular line of putative thinking is breathtaking in its scope.

    The SCOTUS for more than 200 years has been striking down various acts of Congress. The SCOTUS also has struck down literally hundreds of other items, ranging from federal regulations, to state laws, to state and local regulations, to municipal ordinances, and everything in between. The Court has rebuked presidents. It’s rebuked state governors. Hell, it determined a presidential election.

    Yet if the Court decides to throw out Obamacare, whoa, Katy bar the door, because no longer will the Court be legitimate. So sayeth the left.

    Proving, yet again, that leftism actually is a severe mental disorder.

  6. Ron Beasley says:

    What little legitimacy the court might have had left evaporated when Scalia began repeating Tea Party/Frank Luntz talking points and it became clear he had not even studied the law.

  7. I still think the court is going to try and find someway to punt this, at least until after the election.

  8. Hey Norm says:

    The courts legitimacy is long gone…Scalia spouting Fox News Talking Points and showing a huge lack of understanding about economics isn’t going to make it any worse.

    “…limited to the present circumstances…”

    History will laugh.

  9. Hey Norm says:

    All those who are hoping for the unpopularity of the PPACA to give the Koch Brother’s Justices cover for their partisan ruling would do well to examine the source of the unpopularity.
    Many of the people that don’t like it don’t like it because it doesn’t go far enough. Those people are probably not going to be happy about it being struck down.
    Then there are the seniors who will be left with a re-opened donut whole in their Medicare.
    And the young people who will be off their parents insurance.
    And the people with pre-existing conditions that will be dropped.
    But mostly when people realize were back at the starting point…status quo…with unsustainable health care cost increases…and free-riders going to the emergency room on our dime.
    And the Republicans who got the thing overturned…with no answers…no ideas.
    This thing works in Mass. And it’s beginning to work on the Nat’l level.
    But the Republicans want to go backwards…never forward.

  10. Hey Norm says:

    Ginnie Thomas’s legitimacy as a lobbyist certainly will be enhanced, if not the Courts.

  11. Norm,

    So I suppose the spouse of Federal Judges should cloak themselves in veils or stay in the kitchen rather than having careers.

    This Ginny Thomas “conflict” argument is the most phony, partisan thing I’ve seen in quite some time.

  12. Ron Beasley says:

    My gut feeling is that it will be a 6-3 decision to uphold the entire thing, Kennedy and Roberts voting with the four progressive members. Roberts does not want a 5-4 decision. And yes, it will be a political decision not a constitutional one.

  13. wr says:

    @Doug Mataconis: Yes, because the only two life choices for the wife of a supreme court justics are either to stay in the kitchen or work as a lobbyist on issues her husband will decide, accepting hundreds of thousands of dollars from partisans involved in those issues. There are absolutely no other choices for such a woman, so we must accept any conflicts of interest or demand Ginny Thomas don a burka.

  14. @wr:

    I assume you feel the same way about the wife of the wife of a 3rd Circuit Court of Appeals Judge who was, until a year or two ago, the head of the Pennsylvania ACLU?

    I really don’t have much more to say about this that I didn’t cover in this post.

  15. Ben Wolf says:

    @Doug Mataconis: Doug, Clarence Thomas benefits financially from lobbyists arguing cases before the court. It’s irrelevant the money is in his wife’s account because no one in their right mind thinks a married couple is capable of preventing any and all intermingling of funds. If Ginny makes money from political hustling that’s fine, but her husband should not be judging cases involving her clients.

  16. Racehorse says:

    @Ron Beasley: What we will have in the near future if some restraints are not put on the Federal government's control over every aspect of our lives: control over where, when, and how we can travel, control over what kind of houses we can build, control over what we eat, control over what kind of cars we can buy.
    All of these relate to national concerns and welfare as much as health care.
    How about the Constitution? How about life, liberty, pursuit of happiness?

  17. JKB says:

    Well, any legitimacy damage will depend on the opinions. If they overturn and have well reasoned opinions, then it will be down to those who just don’t like the decision. Same if they uphold. If the dissent to an overturn has good grounding, it could really create lots of law blogging.

  18. Hey Norm says:

    Sure Doug…
    “Want something declared unconstitutional? Call 1.800.G.Thomas…Corporations granted Personhood…Presidents Appointed”
    How could there possibly be an appearance of a spouse with a financial interest?

  19. Andy says:

    Yes, it’s just another example of how tribal everything has become. The jurists who support one’s policy preferences are reasoned and impartial – those who don’t, or merely ask challenging questions, are hacks.

    The people who threaten the legitimacy of the court are those who can’t see past their own ideology.

  20. Hey Norm says:

    I didn’t know they let race horses drink kool-aid.

  21. Hey Norm says:

    C’mon Andy…Scalia’s questions showed a lack of knowledge and understanding…they weren’t reasoned and impartial by any stretch.

  22. al-Ameda says:

    @Tsar Nicholas II: “Proving, yet again, that leftism actually is a severe mental disorder.”

    Proving yet again that you can misquote Michael Savage Weiner, and demonstrating once again that conservatism is a rectal disorder.

  23. David M says:

    @Ben Wolf: That really is legalized bribery, I can’t see any other way to describe it. It’s not really a job in any sense of the word, as she helped create a political organization that solicits money from anonymous donors. I don’t have a problem with her having a job, I have a problem with her having a “job”.

  24. Dazedandconfused says:

    What, if anything, is at stake is the credibility of the Roberts Court. Not a small thing, if they want their rulings to stand for any length of time.

    The legitimacy of the Supreme Court? Nahhh…

    http://www.youtube.com/watch?v=Cdk1gwWH-Cg

  25. michael reynolds says:

    @Doug Mataconis:

    Unlike some people I am going to wait until I actually read the Court’s decision in three months before coming to a conclusion.

    And you call yourself a blogger? Analysis first! Facts later.

  26. An Interested Party says:

    I think Lemieux has the better argument here.

    Oh my goodness, I’m shocked! Pass the smelling salts before I pass out…as others have noted, even thought PPACA as a whole may be unpopular, many of its individual parts are very popular…and since you can’t replace something with nothing, what do Republicans have to offer if PPACA is struck down? Oh yeah, tort reform and buying insurance across state lines…those measures will solve everything…

    This Ginny Thomas “conflict” argument is the most phony, partisan thing I’ve seen in quite some time.

    So true…I mean, whores walk the halls of Congress every day, why shouldn’t they also sit on the Supreme Court…

    Proving yet again that you can misquote Michael Savage Weiner…

    Is that who came up with that pathetic line? Tsar Nicholas has even lower standards than I thought…

  27. Gustopher says:

    @Doug Mataconis:

    So I suppose the spouse of Federal Judges should cloak themselves in veils or stay in the kitchen rather than having careers.

    Ginny Thomas has a constitutional right to any job she can get, but Clarence Thomas has a responsibility and obligation to recuse himself when there is a conflict of interest. Why is that hard to understand?

    Justice Thomas has repeatedly failed in his obligations in disclosure, and with his refusal to recuse himself, he should be impeached.

  28. HankP says:

    @Doug Mataconis:

    This Ginny Thomas “conflict” argument is the most phony, partisan thing I’ve seen in quite some time.

    This really is one of the dumbest fucking things I’ve read. She lobbies – and gets well paid – on specific items that her husband then rules upon. Do you have any idea what “conflict of interest” means?

    There’s a simple solution, Thomas should recuse himself on issues that she’s involved with that come before the court. The way they’ve handled it stinks out loud. And since you quoted another “They did it too” situation, yes, that judge should recuse himself from issues his wife’s organization brings into his court.

    This really is the dumbest political hackery I’ve seen here in a while, even worse that your usual “both sides do it” inanity.

  29. Kit says:

    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

    Can you honestly believe that a 8-1 or 9-0 decision in either direction would not substantially change the way the country views the law?

    As for legitimacy, I feel those days are gone. Previously, the best candidates were nominated to preside over the nation’s most pressing matters. The problem here was that lesser lights could not predict how a judge’s opinions might evolve. The solution, naturally, was to pack the bench with lesser men whose ideologically warmed opinions would be less likely cool with experience. The Constitution can still be publicly held up as a totem, but in reality the court will let itself be blown by the political wind’s of the current generation and less by the principles and precedents which have come before. This is who we are now, and how can a democracy ever expect to long shackle itself with a burdensome past?

  30. Brummagem Joe says:

    Echoing a theme I’ve heard from many on the left who were caught off guard

    Rather humorously Doug’s source for this claim is a previous diary of his own. Since the constitutionality of the ACA has been upheld by a majority of appeals courts who have heard the case (only one has found against it and only part of it then) there have been many voices on left and right who consider this a legal no brainer. Despite this it’s always been considered a distinct possibility it could be overturned by this court because of it’s political makeup. If it is overturned 5-4 there’s going to be little doubt about it in most people’s minds. Whatever Doug thinks I rather doubt this is an outcome Roberts will relish particularly as its impact on a lot of other settled law becomes apparent. As of now he’s seen as presiding over a politically partisan court. A decision to overturn will just reinforce that perception.

  31. Brummagem Joe says:

    @Doug Mataconis:

    Unlike some people I am going to wait until I actually read the Court’s decision in three months before coming to a conclusion.

    Really Doug? Sounds like some chicken counting going on here….Viz.

    To some extent, they learned their lesson in that regard in the 2010 Midterms, but this week demonstrated that the hubris had not completely gone away. Now that the blinders are off, the harsh light of reality is difficult for some to bear. Perhaps the Supreme Court will uphold the law in the end. However, if they strike it down the proponents will have nobody to blame for this but themselves.

  32. Brummagem Joe says:

    @Doug Mataconis:

    I assume you feel the same way about the wife of the wife of a 3rd Circuit Court of Appeals Judge who was, until a year or two ago, the head of the Pennsylvania ACLU?

    1. This is totally irrelevant. By your own admission she is no longer head of the ACLU in PA

    2. If you can’t tell the difference betwen the ACLU and a notoriously business funded Republican front group you must be suffering from moral myopia of a severe kind.

    3. This judge would only have behaved improperly if he had not recused himself from cases involving the PA ACLU. Are you saying this has happened?

  33. Kolohe says:

    Say the legitimacy of the institution of the SCOTUS *is* harmed. What I don’t understand is, so what? Institutions that lack legitimacy lose their effectiveness if and only if others can ignore and/or route around them. (see for example, GIRoA). What I don’t see happening, regardless of the outcome of the case, is people either ceasing to bring suits before Court, or ignoring the rulings they make.

    It’s similar to the Congress. Approval rating is at an all time low, and even individual Congresscritters are starting to take a hit on favorability, yet people are still running for Congress and people are still following the laws it passes.

  34. al-Ameda says:

    @Kolohe:

    Say the legitimacy of the institution of the SCOTUS *is* harmed. What I don’t understand is, so what? “

    So what? Life goes on, right?

    Well if you don’t care about the quality of life, then I suppose you’re right.

    This country has been dumbing down for the better part of a generation or so, and now our politics reflect this and we are dysfunctional to the point that we cannot sensibly come together to politically solve our problems. Why should we be happy that the Court will be perceived as being a part of the problem, and not the solution?

  35. Brummagem Joe says:

    @Kolohe:

    Say the legitimacy of the institution of the SCOTUS *is* harmed. What I don’t understand is, so what? “

    The so what would happen afterwards. Overturning the entire ACA would have immediate consequences in eliminating various highly popular elements of the law like reopening the donut hole, reinstating caps, removing denial of coverage restrictions and leaving a lot of young people without coverage. If you don’t think this is going to stir up much controversy then I think you’d be wrong. Then there are wider legal implications as it relates to a lot of settled law on the commerce clause . For example the Medicare payroll tax is a mandate although it could be reasonably be called a tax. However, in just about every area of govt there are federal mandates large and small (the existing healthcare system is riddled with them) which are going to come under attack from conservative zealots across the country which is going to open a Pandora’s box of legal uncertainty that will impact millions of people. Considering it’s one of the greatest courts in the world the SCOTUS didn’t cover itself in legal glory last week because much of the questioning was banal in the extreme. Scalia’s broccoli was the best example but Alito specifically called into question the legal basis for Medicare and SS as several commenters have pointed out.

  36. @Brummagem Joe:

    For the third time, that paragraph was in reference to liberal pundits who were shocked to learn that the legal battle over ObamaCare was not going to be a slam dunk

  37. Davebo says:

    I’d like to hear a lawyer’s perspective on this issue. Unfortunately I only have a blogger. How does one bill 70 hours per week and still post 20 comments per day?

    At least James has the wingnut welfare backing him up. How do you manage it Doug?

  38. Kolohe says:

    @al-Ameda:

    But again, so what? What are the actual consequences of a Court that is perceived as ‘part of the problem?’ Will it be ignored? Abolished? Likely not. ‘Reformed’? Maybe. But as you say, the very dysfunction of the political system makes ‘reform’ a quixotic endeavor, likely to achieve not much (least of all what ‘reformers’ want to do).

    @Brummagem Joe:

    I’m not saying it won’t have political consequences; indeed the ruling (and the reaction to it) will tip the 2012 election (both prez and downticket) in one way or another.

    The ‘legal consequences’ are fair enough, but they would result in *more* cases being brought before SCOTUS (and lower courts) not fewer. Hardly the fruit of ‘illegitimacy’.

  39. Brummagem Joe says:

    @Kolohe:

    The ‘legal consequences’ are fair enough, but they would result in *more* cases being brought before SCOTUS (and lower courts) not fewer. Hardly the fruit of ‘illegitimacy’.

    You’re confusing process and perceptions, and btw contradicting the conclusion in your first para (perceptions of legitimacy are by definition largely political). It’s the nature of those cases which would revolve around issues that most people would regard as long settled that would call into question the court’s legitimacy.

  40. Brummagem Joe says:

    @Doug Mataconis:

    For the third time, that paragraph was in reference to liberal pundits who were shocked to learn that the legal battle over ObamaCare was not going to be a slam dunk

    Yes Doug it certainly sounds like that. And as I’ve pointed numerous times the slam dunk nature of the constitutionality of the act was a view shared by many on the right and just about everyone larded it with caveats about the possibilities for conservative judicial activism. The exclusively liberal SHOCK is entirely an invention of yours I’m afraid.

  41. Brummagem Joe says:

    @Davebo:

    At least James has the wingnut welfare backing him up. How do you manage it Doug?

    Does JJ work for a wingunt front?

  42. anjin-san says:

    This Ginny Thomas “conflict” argument is the most phony, partisan thing I’ve seen in quite some time.

    Some people might say that continually referring to Obama as “messiah” and “the one” trumps that…

  43. al-Ameda says:

    @Doug Mataconis: “For the third time, that paragraph was in reference to liberal pundits who were shocked to learn that the legal battle over ObamaCare was not going to be a slam dunk”

    Doug, I am a liberal and I do not know a single liberal who (prior to Oral Arguments) believed that this Court would NOT invalidate ACA.

    What was somewhat surprising was that Scalia casually used movement talking points like the “broccoli analogy” in his questioning, and that Alito carefully called into question the legal basis for Medicare and Social Security.

  44. Robert Levine says:

    I think Doug understates the uniqueness of this situation, and thus its potential consequences.

    I can’t think of another instance (perhaps some New Deal legislation?) in which legislation identified as the signature accomplishment of a president, passed by a party-line vote in both houses, was challenged by all the states with governors of the opposite party and was then overturned by the Supreme Court by a strictly partisan vote (ie, all the Justices appointed by presidents of the opposite party voting to overturn and vice versa).

    I think that does pose a unique risk that the Court will be viewed by many people as simply another partisan legislature. Two groups in particular could pose particular problems: members of Congress and members of the Court itself.

    Democrat members of Congress are going to think that the Court simply changed the rules in the middle of the game. Even if you think that’s not justified (and there’s plenty of justification), that’s what they’re going to think.I think such a ruling would virtually guarantee that any Republican nominations to the Court would be filibustered; nominees could testify until they’re blue in the face about their devotion to stare decisis, but no one is going to believe them.

    That, in turn, could well lead to the end of the filibuster; no great loss, in my view, but a major shift in governance norms nonetheless.

    Also at risk is the notion of stare decisis itself. A ruling overturning ACA will be very hard to square with that most important doctrine by any but those who really didn’t like the precedents regarding the Commerce Clause anyway; for the current Justices on the losing side, as well for for future Justices nominated by Democratic presidents, it will likely end the concept as we know it. Stare decisis only works if both sides refrain from overturning legislation on partisan grounds, or even the appearance of partisan grounds.

    In the end, I don’t think those either on the left or the right really want a political system where the Court is simply an unelected super-legislature that feels free to rule based on its policy preferences. But that’s the road we seemed to be headed down.

  45. KariQ says:

    Oh, to be fair, there were some liberals who were shocked. They were shocked that Scalia didn’t even seem to know what was in the law and mocked the idea that he should find out. The were shocked that he at one point merely repeated the arguments of the law’s political opponents. And several were shocked that the justices didn’t seem to understand the way that health insurance works. And others were shocked that some justices seemed to think that medicaid was coercive.

    So yeah, there was some shock out there.

  46. DRE says:

    @Brummagem Joe: Then there are wider legal implications as it relates to a lot of settled law on the commerce clause

    This is where the question of legitimacy comes in. It’s not the legitimacy of the court that is in question, it is the legitimacy of the entire federal government. If the court strikes the mandate, with or without striking the whole bill there will be a lot of people who believe it was a political decision, and it will enhance the already strong perception that the court is another political branch, but if that is all that happens it won’t be that big a deal. In order for that to be the outcome they will have to rule against the mandate semantically, saying that if it had been a tax it would have been fine. This would be similar to Bush V Gore, in that it would be a clearly political decision, but one that doesn’t really affect anything but this law. However, if they reach a decision that says that Congress is substantively exceeding its constitutional power regardless if it is a tax, especially if the medicaid portion is specifically struck down, we have the potential for a real problem. If they reach that sort of decision then we could be in for a horrendous period of challenges to other laws that have been in effect for decades and are fundamental to the functioning of our government. If the courts applied that logic consistently, we could lose medicare and social security, as well as any constitutional basis to build new programs. If the logic was not applied consistently then the court would have destroyed the idea that we have a written constitution that matters. Who knows where we go from there.

  47. Brummagem Joe says:

    @KariQ:

    Oh, to be fair, there were some liberals who were shocked……So yeah, there was some shock out there.

    Except it’s not the shock to which Doug specifically refers unless liberals were generally believed to have an elevated opinion of the quality of Scalia’s jurisprudence. I think some might have been a bit surprised at the rather sophomoric level of his questions (me included) but shock is a bit of a stretch.

  48. KariQ says:

    @Brummagem Joe:

    Except it’s not the shock to which Doug specifically refers

    I know that. I didn’t expect anyone to think I was being serious about what I wrote there. I really gotta lay off the sarcasm.

    Any way, stumbled across this and found it fascinating. I thought some of the readers here might be interested in it, as well: http://scopeblog.stanford.edu/2012/03/the-supreme-court-on-health-reform-summing-up/#more-80083

    So what will happen?

    Anything could happen. Don’t believe anyone who is highly confident of the overall outcome of this case. (Jeffrey Toobin of CNN has written so strongly of the death of health reform that he has convinced me not to pay attention to him in the future.) This case is important, it’s unprecedented (in a technical sense – there is no clear ruling precedent), and the one thing that does seem clear from the oral argument is that it should be close. But here are my guesses, on each of the four questions the Court asked the parties to address.

    On the main event, my best guess is that the individual mandate will be upheld, five to four or six to three. It is not a confident guess. My second best guess is that it will be struck down, five to four and I’d put the chances between those two at about 60/40. But I do suspect, ultimately, Justice Kennedy is slightly more likely than not to side with the statute – and Justices Ginsburg, Breyer, Sotomayor, and Kagan. I see three reasons for that.

    Read the whole thing, if you’re interested in some serious law-talking-guy thoughts about what could happen.

  49. Brummagem Joe says:

    @Robert Levine:

    Also at risk is the notion of stare decisis itself. A ruling overturning ACA will be very hard to square with that most important doctrine by any but those who really didn’t like the precedents regarding the Commerce Clause anyway; for the current Justices on the losing side, as well for for future Justices nominated by Democratic presidents, it will likely end the concept as we know it. Stare decisis only works if both sides refrain from overturning legislation on partisan grounds, or even the appearance of partisan grounds.

    This I think is the nub of it. Absent a major societal screw up or wrong once you start monkeying around with stare decisis on a major political issue (and after all this is the most significant piece of domestic legislation for a generation) then the entire basis of stare decisis comes into question. It’s for this reason I still think it probable that it will be upheld. With a 5-4 decision to reject it’s going to be hard argue this was anything other than political and it is according my kids who are both lawyers (one’s a liberal and the other’s a conservative and both have clerked for appeals judges), going to open the floodgates to a load of challenges in all sorts of areas by rightwing political zealots with all manner of unintended consequences.

  50. Brummagem Joe says:

    @KariQ:

    Read the whole thing, if you’re interested in some serious law-talking-guy thoughts about what could happen.

    I’ve now read it. As you say an exellent summation (btw I agree with his Toobin comment, he made a complete ass of himself) and it’s more or less exactly what my kids say (who are qualified to pontificate on this unlike me). Interestingly my son who is the more conservative of the two is the one most concerned about unintended consequences. Thanks for the link. It’s well worth reading.

  51. An Interested Party says:

    Read the whole thing, if you’re interested in some serious law-talking-guy thoughts about what could happen.

    Oh, you mean as opposed to Doug?

  52. Racehorse says:
  53. Brummagem Joe says:

    @Racehorse:

    For a balanced and different opinion on this:

    Yep who has more cred….. a Stanford law professor and head of their center for bio medical ethics or some anonymous hack at the Gaston Gazette (the Gaston what?).

  54. Scott O. says:

    @Racehorse:
    From the article, “It is our position the federal government has no authority to impose mandates, regulations, taxes or other burdens on the citizenry simply to improve someone’s life”.

    That’s balanced? I can understand arguments that the mandate may be unconstitutional but the Gaston Gazette isn’t making that case. They’re just saying they don’t like it.

  55. Just 'nutha ig'rant cracker says:

    @john personna: You’re not seeing the big picture. We know that the court is impartial because it decides the way that we believe.

    It works the same way as “authenticity” in literature–I regard the story as “authentic” because it reflects the world as I see it. It’s a feature, not a glitch.

  56. KariQ says:

    @An Interested Party:

    No disparagement of Doug’s skills as a legal expert were intended. He’s been talking about the politics of the decision. Greely is talking about the likely outcome and how it will be reached. Different topic, that’s all.

  57. Hey Norm says:

    Since when are Republicans in favor of free-loaders and not personal responsibilty. It’s funny…their so deranged by the person of color in the White House their core beliefs mean nothing any more.

  58. Brummagem Joe says:

    @KariQ:

    Greely is talking about the likely outcome and how it will be reached. Different topic, that’s all.

    Greely did spend some time talking about the politics of it. As for Doug while I wouldn’t for a moment impugn his legal expertise he views this legislation through a largely political prism and this does color much of his comment on the topic. Greely on the other hand declared his position and then proceeded to to give an entirely even handed description of the process and the likely implications if it was overturned.

  59. matt says:

    @Scott O.: Even better you could take that statement to the logical end that the Gaston Gazette doesn’t believe government should exist at all. After all the government exists to “establish a more perfect union” which means the government uses taxes to improve the life of it’s citizens…