Ten Miles Square


June 19, 2012 12:00 PM Partisanship and the Supremes

By Jonathan Bernstein

Kevin Drum makes what I think is a potentially good point – including the necessary caveat that we don’t want to pre-interpret a Supreme Court decision that hasn’t been issued yet – about what a Supreme Court decision knocking out the ACA might mean:

If the court does overturn the mandate, it’s going to be hard to know how to react. It’s been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can’t think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock — but it was also a unanimous decision and, despite FDR’s pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. 

Why do I say it’s only a potentially good point?

Because there’s another possibility here: that the SCOTUS conservatives don’t care at all about ACA or partisan positioning, but instead really do want to return Constitutional doctrine to where it was before the New Deal.

In my view, it was the wrong interpretation of the Constitution then and would be wrong now…but it’s not really just plain naked partisanship on the part of the Court’s conservatives if that’s what they believe. And there’s of course reason to believe that a lot of people do believe it that theory of the Constitution.

However, if we get a 5-4 decision that doesn’t challenge the New Deal but relies on fatuous broccoli stories to knock out part or all of ACA…yeah, that’s pretty much as close as you can get to substituting the Supremes’ partisan-derived policy preferences for the decisions of Congress and the president. 

[Cross-posted at A plain blog about politics]

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.


  • Peter C on June 19, 2012 4:53 PM:

    I don't buy it, Jonathan. Bush v. Gore doesn't fit into anything other than a partisan frame and it is hard to say that it makes sense in a pre-New Deal context. The same for Citizens United.

    Can you really make a case that Kennedy's rulings are consistent with a pre-New Deal context? He's the deciding vote in this. There hasn't been much of a pre-New Deal mindset in the past 24 years that Kennedy has been on the court.

    No, throwing out the ACA would be a nakedly partisan act, just like Bush v. Gore and Citizens United. They would do it because they can, not because there were philosophical underpinnings. Such a decision would be a tragic outcome for our legal system, which has a concrete tradition of deciding cases based upon the law above all other considerations.

    If they throw out the ACA, it will be difficult to convince me that the law is pre-eminent. Political partisanship will have gained that spot and it is hard to see how it will ever get back to the old way.

  • Milt on June 20, 2012 10:35 AM:

    I agree with Peter C. I do not think any Supreme Court justice is immune from pressure generated by powerful interest groups and there seems to be a few that work hand-in-glove with them.

  • Robert on June 21, 2012 2:14 PM:

    They may well claim non-partisan 'originalism' or some such manufactured BS is the basis for their decision and some of them - Thomas - may even believe it. But no don't you believe it. They will have arrived at those rationalized positions in their own mind -just as they did in Bush v. Gore - because of their reactionary Republican anti- government partisanship. For them it is about making the law fit their vision and their vision is that of the modern /reactionary Republican Party.

  • Fred on June 22, 2012 8:14 AM:

    The Partisan Four Plus One have already done their dirty deed with Citizens United. Now they can sit back and wait for their beloved corperate persons to take over all levers of political power.
    If the five decide to personally dismantle ObamaCare they will do it just for fun.