Political Animal

Blog

March 30, 2012 4:37 PM Judicial Legitimacy

By Ed Kilgore

In an important article at TNR, Jonathan Cohn underlines the gravity with which the Supreme Court Justices should approach their decision on ObamaCare:

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.

This last observation, of course, calls to mind a third decision that had an “quick, widespread impact”: Bush v. Gore.

Indeed, it’s in part fears about the Court’s legitimacy, and the belief that these fears are shared by the Justices, that leads another TNR writer, Bill Galston, to suggest the Court will shrink from the opportunity to strike down the individual mandate, or will at least tailor the decision as narrowly as possible.

I suppose I should be reassured by both articles that my own fear the Court could go further than either of these writers contemplate, and significantly erode or even invalidate the Medicaid program (or the whole intergovernmental system of “coercive” grants) is simply irrational.

But then there’s Bush v. Gore. And there’s the long campaign of the Federalist Society to build the infrastructure for a constitutional counter-revolution. And there’s the possible realization by the Court’s conservatives that if Barack Obama wins a second term, they may struggle to achieve a similar opportunity to make history.

The scary thing is that the Court may have already made its decision by now, unless the notoriously irresolute Anthony Kennedy holds things up. But it will be a good while until we know whether five Justices have gambled their legitimacy—not to mention the availability of health care to millions of Americans—on a quick strike against Barack Obama.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • majun on March 30, 2012 4:51 PM:

    If Kennedy goes to the left on this one, the decision to uphold the mandate won't be a partisan 5-4 ruling because Roberts will be forced to join the majority in order to see to preserve his right to assign the decision writing to a specific justice (himself or Kennedy). So, for the mandate will be 6-3 but against the mandate will be a 5-4 decision.

    But in the end it will be seen as a partisan exercise no matter what the decision. For as long as Scalia and Thomas hold on to their seats, this court will lack any semblance of legitimacy.

  • Equal Opportunity Cynic on March 30, 2012 4:53 PM:

    Cohn makes a good point. If the Supreme Court gets this one wrong, we could see American society revolt in ways reminiscent of the way it repudiated the Court after Bush v. Gore. You do remember those years of societal upheaval when virtually everyone treated GWB as a sham president, right?

    (No, i don't remember them either. What's supposed to be the disincentive for the SC to illegitimize itself again?)

  • Rick B on March 30, 2012 5:17 PM:

    @Equal Opportunity Cynic - I'll agree with you that the reaction to Bush vs Gore was, shall we say, muted. And it emboldened the Supreme SOB's to pull a similar stunt on Citizens United. In fact With CU they actually reached out to expand the case given to them and make it a vehicle for their activism.

    Add to that the utter lack of ethics demonstrated by Thomas and Scalia and I think this will be a new age if those idiots overreach themselves.

    The Supreme Court has no ability to enforce its orders, so it depends on its legitimacy. That legitimacy is now in tatters in ways it was not in 2000. The Justices really need to look to the future of the institution they head as they consider this decision.

  • skeptonomist on March 30, 2012 5:19 PM:

    I don't know when the "modern era" started, but the decision striking down the NRA had very important immediate effects. The conflict between President (and Congress) and the Court was not resolved for some time, but the Court eventually moderated to a significant extent.

  • MItch on March 30, 2012 5:21 PM:

    "What's supposed to be the disincentive for the SC to illegitimize itself again?"

    Well said, Cynic.

    A partisan 5-4 ruling will not hurt the Court in any real way. Dems already dislike those five people, and consider them extremists. "Independent" voters will be of mixed opinion, obviously, since they are not a single entity. Conservatives will love them for taking a stand.

    How many people do you know who hate the Court over Bush v. Gore?

    Only those people who already have reason to dislike them. Everyone else is neutral or worse.

    And if you think that denying health coverage to millions of Americans is going to change anyone's mind, you are a touch naive.

    Remember than nearly every single Conservative voter and legions of "Independents" will swear that we have the "world's best healthcare" and that emergency rooms are reasonable subsitutes for real medical attention. And, of course, that "socialism" is always the wrong answer.

    So how is a partisan ruling going to hurt them? It would not. Such a ruling would only legitimize them in the eyes of the GOP base, and right-leaning Independents. Lefties already dislike the five Justices in question; that won't change even if they come back 9-0 in favor of all of ACA.

    Plus, it's not like they are afraid of public outcry; why should they be? They are not exactly elected officials anyway.

    The only way they will be in favor of ACA is if they ignore politics, and make their decision based on precedent. Of course, that may make them illegitimate in the eyes of Conservative Americans (like Roe v. Wade), which is another worry altogether.

  • T2 on March 30, 2012 5:36 PM:

    anyone on the Left realizes the fix is in with this SC. The second they circumvented the people's will in 2000, the writing was on the wall. I would be stunned if the result wasn't 5/4 against the mandate and the entire ACA.

  • David Carlton on March 30, 2012 5:45 PM:

    Re *Brown,* it needs to be pointed out that it did *not* have an immediate impact on anything. The decision set forth no remedy, and the Court took a year to come up with one. The one they came up with was comically weak, requiring plaintiffs to bring suit one school system at a time, often in the face of daunting intimidation. It also worked only to bring black students into previously all-white schools, generally on a "token" basis; not until 1970 did the Court actually require the merger of dual school systems. I don't know how old you are, Ed, but I entered the first grade the year *Brown* was decided. I first attended a "desegregated" school when I was a *high school junior*, and in that case "desegregation" meant one hand-picked black student in a sea of 1800 whites. For the Court to trash Obamacare now will be a *far, far* more radical step than anything the "nine men against America" ever did.

  • Daryl McCullough on March 30, 2012 6:02 PM:

    Basically, this Supreme Court has announced to conservatives: if you don't like what those big meanies, the Democrats, do, come to us, and we'll make everything all better.

    So the Republicans have three chances to stop any law they don't like: Block it in the House, Filibuster it in the Senate, and then if somehow the first two don't work, cry to the Supreme Court.

    It hardly matters whether they ever have a majority or the Presidency again, they can pretty much have their way.

  • PrahaPartizan on March 30, 2012 6:14 PM:

    Third time's the charm! When the Robert's Court strikes down the ACA because it had adopted a conservative approach to providing national health care, don't be surprise that we start to hear in earnest references to this court resembling nothing quite so much as Taney's and his tone deaf ruling in Dred Scott. The end result will likely play out the same way, because the conservative party is bleeding adherents and the liberal party is picking up new membership. Overturning the ACA will just accelerate the process, when many of those 21 to 26 year olds learn they just dumped from their parents health care policies and they'll need to go exploring in the health insurance jungle on their own.

  • cmdicely on March 30, 2012 7:01 PM:

    In an important article at TNR, Jonathan Cohn underlines the gravity with which the Supreme Court Justices should approach their decision on ObamaCare:

    "Important"? Distorted, inaccurate, nonsensical, and self-contradictory, certainly. Important? I don't see it.

    The first setence you excerpt might be true with a sufficiently generous definition of "rarely":

    Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact.

    But this is not, except with a highly-contrived definition of "modern" (or, a highly selective mind):

    In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade.

    There are several more similar cases to a hypothetical one invalidating the Patient Protection and Affordable Care Act, both in terms of the nature and scope of the immediate economic impact and the nature of the legal issues. E.g., the various cases invalidating New Deal programs. Calling Brown part of the "modern era" but those cases not is, at best, dubious.

    And it gets worse:

    Both were acts of ambitious, even audacious judicial activism.

    "Judicial activism" isn't a term that has any meaning. Used as a complaint, its usually coextensive with "judicial actions I disagree with".

    Used as anything else, it doesn't mean anything.

    But, in two key repsects, they were different from a potential ruling against the Affordable Care Act

    Brown and Roe are so absolutely unlike any hypothetical ruling against the ACA that limiting their dissimilarities to "two key respects" is ludicrous. There isn't any substantial way in which they are similar.

    Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two.

    Since we don't know that PPACA will be struck down, or what the vote will be if it, this isn't a difference. Oh, sure, there are speculations that if it would be struck down it would be a 5-4 decision: I remember such speculations about overturning the Florida Supreme Court in Bush v. Gore, the actual vote to overturn the Florida Supreme Court decision was 7-2.

    So, Cohn's first distinction is completely baseless speculation, how about the second:

    The second distinction is even more more significant. Today Brown is a nearly universal icon of social progress, while Roe remains an object of great controversy. But, for better or for worse, both cases represented efforts to change the everyday reality of American life.

    Interesting. Cohn sees the difference, then, that in Roe and Brown, the Court was -- independent of the relationship to the law -- acting out of good policy motives. Is that a valid consideration for the Court? Let's let Cohn's own last paragraph address that:

    Alito is entitled to his opinion about what makes for good legislation. But he's not entitled to impose that opinion on the country and his colleagues aren’t, either.

    Oh, so judicial policy preferences apparently are an important positive consideration when the policy preferences match Cohn's, but its apparently unethical for Justices to "impose" policy preferences on the country when those preferences don't agree with Cohn's.

    Hey, Ed, whatever happened to your state intent not to obsess over this issue?

  • Anonymous on March 30, 2012 7:14 PM:

    "Indeed, it’s in part fears about the Court’s legitimacy, and the belief that these fears are shared by the Justices, that leads another TNR writer, Bill Galston, to suggest the Court will shrink from the opportunity to strike down the individual mandate, or will at least tailor the decision as narrowly as possible."

    And this is why liberals have been losing for 30+ years and will continue to lose until the country is not one we want to live in. Liberals can't fathom the viciousness with which conservatives are pursuing, without remorse or empathy toward individuals and citizens, their goals of market absolutism and negating any sense of we're-in-this-together. I've already said it today:

    ...The spinelessness of Democrats and liberals/progressives in the face of their onslaught is going to result in a country most of us don't want to live in. Banana republic here we come brought to you by the Banana Republicans and spineless Democrats in the face of it.

  • TT on March 30, 2012 7:32 PM:

    "....the actual vote to overturn the Florida Supreme Court decision was 7-2."

    In conservativeworld it was 7-2. On this planet it was 5-4. Not everything you see on Fox News is true.

  • Doug on March 30, 2012 8:32 PM:

    I fail to see what's to be gained by all this kvetching.
    If the majority of the members of the SC, for purely political reaons, wish to rule the PPACA un-Constitutional, they will do so. IF their ruling/s against it ARE based on political, rather than Constitutional, grounds, THAT should be apparent from the content of their rulings. However, unless the SC rules the SS/Medicare systems are ALSO un-Constitutional, I fail to see what gain this will have for the Republican/Teabagger(do they realize what this could actually mean for them?)/Libertarian crowd. If the "conservative" Justices on the Supreme Court ARE as politically attuned as some think, I can't see them handing an incumbent Democratic President such a politically lethal weapon with which to attack their (non-SC)"brethren".
    Those who think Mr. Obama is not a progressive might be surprised by his reaction to an anti-PPACA ruling. Remember, the President has the power to call Congress into session at his discretion and I shouldn't think it would take long for the Executive branch to draw up legislation expanding Medicare...
    Would Republicans really want to vote against the interests of 95& of their constituents?
    AGAIN?

  • JackD on March 30, 2012 10:51 PM:

    Concerns about the decision having already been made are misplaced. The judges, if they follow usual procedures, will circulate competing briefs pro and con internally and any can and may change their minds between now and decision day.

  • tcinaz on March 30, 2012 10:57 PM:

    The Court unveiled its naked partisan stripe in Gore vs. Bush and in Citizens United. They cannot have a death wish, which overturning ACA would precipitate. The Court has existed as a force because of its apparent independence from partisan persuasion. To have ruled in such a partisan fashion in three consecutive major rulings, and these have been the three most significant consecutive rulings, would be a confirmation that the court is political not judicial. The court would lose any credibility from that point forward. All further decisions would fall 5-4, because all restraint would be gone. Even Kennedy would be forced to always side with the conservatives, because he would have lost all credibility in this decision otherwise. Thus, I expect this court to at least "divide the baby" if not uphold it outright. Of course,I was wrong about Gore vs. Bush. That is a scary precedent.

  • c00p on March 31, 2012 12:13 AM:

    Majun, in the first comment, says it all: As long as Scalia and Thomas are around, " this court will lack any semblance of legitimacy." The court can't gamble with its legitimacy because it doesn't have any.

  • bob h on March 31, 2012 7:05 AM:

    Some sort of Constitutional showdown with the Roberts Court may be coming. What is the limiting principle on a rogue, unaccountable Court? The President has the power under the Constitution to take extraordinary measures to protect the general welfare, and disobeying a Court that has usurped the powers of Congress might be justifiable.

  • Jimo on March 31, 2012 11:49 AM:

    Re Bush v. Gore: “quick, widespread impact”

    No, the SC forbid any impact from that decision by decreeing that it never be cited as precedent. We've had several important legal cases since regarding electoral law and B v. G never mattered to any of them. (Indeed, this aspect for many is the proof that the case was nakedly partisan.)

    I believe you confuse the concept of "consequences" with "impact."

  • Just Dropping By on March 31, 2012 12:20 PM:

    The President has the power under the Constitution to take extraordinary measures to protect the general welfare, and disobeying a Court that has usurped the powers of Congress might be justifiable.

    Yes, of course, the President will just snap his fingers and magically fully implement ACA when his party is unlikely to control both houses of Congress (let alone by sufficient majorities to avoid filibusters or defectors) for the foreseeable future. Grow up.