Sometime between now and next Friday, the Supreme Court will finish handing out the remainder of its outstanding decisions including, most notably, its decision in the four cases that make up the various challenges to the Patient Protection And Affordable Care Act of 2010, or as pretty much everyone has come to refer to it now, ObamaCare. Predicting what the Court will do is always a perilous task, none the more so here where the outcome of the case likely depends on how a single Justice, Anthony Kennedy, ended up viewing the case after March’s Oral Arguments. It’s not unfair to say, though, that the law’s opponents received a significant boost from those arguments, and that many of the law’s supporters were dejected, after the second day of argument seemed to indicate that Kennedy and at least four other Justices had serious problems with the Constitutionality of the individual mandate and that the severability arguments on Day Three seemed to suggest that they might toss the whole law out if they struck down the mandate. That led to much commentary on the left arguing that the Court would be risking its legitimacy if it struck the PPACA down, which struck me as an odd argument to make largely because polls, then and now, showed that a substantial majority want the Court to strike down the law. Now that we’re approaching Decision Day for the PPACA, those arguments are being made again.
First up, there’s Juan Williams, who argued yesterday in The Hill that the Court is risking its legitimacy because, if he loses in Court, Obama will attack the Court during the election:
The Democrats have a nuclear option in this political game if the high court throws out the healthcare law as unconstitutional.
That blowup-the-system button, not pushed since FDR’s attempt to stack the court with Democrats during the New Deal, is for Obama to use the bully pulpit of the White House, and the national stage of a presidential campaign, to launch a bitter attack on the current court as a corrupt tool of the Republican right wing.
It is a move that could energize Democrats and independents even as Republicans celebrate a major legal victory.
(…)
The relevant point is that the court may do irreparable harm to its reputation with another highly political split between justices appointed by Democrats and justices appointed by Republicans. A 5-4 defeat of the healthcare law will erode trust in the justice system.
It will be another example of how polarization has poisoned our politics during the past decade.
So let me get this straight. The Supreme Court comes down with a ruling that the President disagrees with, the President responds by spending the next four months attacking the legitimacy of a co-equal branch of government, and it’s the Supreme Court’s fault that things have become polarized? Where is President Obama’s responsibility for pushing a health care “reform” bill that never had public support to begin with, either because it was truly unpopular or because he and his staff utterly failed to communicate the reasons it was supposedly a good thing to the public? Where is Congress’s responsibility for not even holding a single hearing about the Constitutional arguments that were being made regarding the mandate and other aspects of the law as early as September 2009? Why doesn’t anyone ask Nancy Pelosi why she laughed off the suggestion that the law might be unconstitutional? The idea that the Supreme Court is the one responsible for the fact that Congress passed a law that, at best, skirts the boundaries of Constitutionality, is simply absurd and a conclusion that one can only reach if you refuse to accept the possibility that your view of the Constitution as it applies to the PPACA might just be wrong.
In a similar vein, Kevin Drum argues that a decision that strikes down the mandate can only be seen as politically motivated:
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. This would be, in no uncertain terms, no longer business as usual.
It’s interesting to see what Brown (and Williams) are doing here. The Court’s decision hasn’t even come out yet, and they’re already laying the groundwork for the argument that any decision other than complete vindication for the PPACA will be entirely political in nature. The fact that they are doing so for the purpose of advancing their own political agendas is slightly ironic, of course, but it’s worth noting that what’s going on here isn’t really an honest discussion about legal issues as it is laying the ground work for the very war against the Court that Williams suggests Obama engage in if the PPACA is overturned. All this before they even know what the result is, or what the legal reasoning in the opinion will be. Again, all of this while they’re making an argument accusing the Court of being the one that would be acting politically.
The real question, though, is whether it would really be a good idea for the Democrats to follow the advice that Williams explicitly, and Drum implicity, offers and engage in a full-throated attack on the legitimacy of the Supreme Court in the wake of a ruling striking down the PPACA. In some sense, it might not be necessary for the campaign to do that, of course, because the pundits on the left, and pretty much everyone on MSNBC, are likely to spend most of the summer (at least up until the Olympics) doing it for them.
Nonetheless, Jeff Shesol argues that it would be a mistake for the left to engage in an attack on the Judiciary in the event of an adverse ruling. Shesol starts out by pointing out that running against the Court isn’t new to American politics. Thomas Jefferson and Abraham Lincoln both did it. William Jennings Bryan in 1896, Teddy Roosevelt in 1912, and Robert LaFollette in 1924 all did it too. Franklin Roosevelt famously tried to take on the Court with his Court-packing plan, and failed. And in 1968, Richard Nixon successfully made the Warren Court’s rulings on criminal justice matters an issue in the election, and Roe v. Wade has served as a rallying point for the right for decades now. However, Shesol notes, there is a danger in these attacks:
Running against the court, then, is a winning strategy—except when it isn’t. History, like legal precedent, sometimes points in two directions at once. So what lessons can President Obama draw from these conflicting examples? The first, clearly, is that criticism of the Supreme Court is hardly unheard of—even vigorous criticism, even in an election year. Second, candidates for (and occupants of) the White House have an obligation to say what kind of judges they plan to appoint. Reagan talked a lot about that question in 1980, recalls Ed Meese, who helped run the campaign and later served as attorney general, because Reagan felt that appointing judges “was one of the most important things that a president did,” Meese says. It is almost always the case—it certainly is this year—that the winner of the election might have a chance to tip the balance on the court for a generation.
There’s a difference, though, between describing your ideal justice and attacking the less-than-ideal ones we’ve already got. Criticizing the court “might well be appropriate,” observes Walter Dellinger, solicitor general during the Clinton administration, but “it might also be bad politics.” This year, for President Obama, it is almost certainly both: appropriate and unwise.
It is true, as some on the left point out, that the court’s “numbers are fairly soft”: the New York Times/CBS News poll is not the only one to register a sharp drop in public faith in the institution. Others show that trust in the Supreme Court has tied record lows set back in the 1970s, and that by a substantial margin, voters expect the justices to base their health-care ruling more on politics than on the Constitution. This does not, however, put them in the president’s camp. More than two thirds of Americans—including more than 70 percent of independent voters—hope the court will overturn some or all of the ACA. In other words, if the justices oblige, a majority of Americans might question the grounds of the decision but approve of it regardless. Advantage, Mitt Romney.
So, the “attack the Court” strategy is something of a risk for Obama. Of course, it would also be a risk for Romney if the decision goes the other way, which I will admit is entirely possible. For both candidates, the decision itself is going to need to be responded to no matter what it says and, if nothing else, it’s likely to make the issue of who gets to pick the Justices who will replace the people who may be retiring between now and 2017, which could include as many as four justices depending on health issue and retirement preferences, at least somewhat important, although that’s typically something that only motivates base voters rather than independents. It strikes me, though, that the President and his campaign would be mistaken if they took the news of an adverse ruling at the Supreme Court as an opportunity to bash the decision as politically motivated. Not only would it undermine the the Rule of Law, it would play into Republican arguments that President Obama doesn’t give sufficient consideration to the Constitutional limitations of his power. More importantly, such an attack by Obama would play into the arguments made by his critics that his primary goal is to expand the power of the Federal Government in an era when the public is continuing to lose trust in the very institutions he would give more power to. That strikes me as a risky strategy to say the least.
