With less than twenty-four hours now left before the Supreme Court issues its opinion(s) in the litigation challenging the Constitutionality of the Affordable Care Act, pundits on various sides of the political debate surrounding the bill are already starting to lay the groundwork for their responses to what the Court does.Since the conventional wisdom, which could be completely wrong, currently seems to be that at least the individual mandate portion of the law is likely to be declared unconstitutional, most of that groundwork seems to be coming from the left and from those sympathetic to the PPACA. I’ve covered several of these “prebuttals” in earlier posts (see here and here, for example) The latest example of that which seems to be garnering the most attention comes from James Allows in The Atlantic, who argues that the current Supreme Court, dominated as it is by mostly conservative Justices, is subverting democracy:
Normally I shy away from apocalyptic readings of the American predicament. We’re a big, messy country; we’ve been through a lot — perhaps even more than we thought, what with Abraham Lincoln and the vampires. We’ll probably muddle through this and be very worried about something else ten years from now. But when you look at the sequence from Bush v. Gore, throughCitizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we’d identify as a kind of long-term coup if we saw it happening anywhere else.**
Liberal democracies like ours depend on rules but also onnorms – on the assumption that you’ll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy. The Roberts majority is barreling aheadwithout regard for the norms, and it is taking the court’s legitimacy with it.
In a follow-up post, Fallows cited the Court’s recent actions as one of the signs what he claims to radical change in U.S. politics and, in yet another post, decides that the real problem is that there are too many 5-4 rulings (as if 6-3 is a better number for some reason). Jonathan Bernstein seems to agree in a Plum Line post, but pushes back against the idea that the Justices are inherently political in a post on his personal blog:
The truth is that (as the decision in the Arizona case should remind us) the current Court is certainly not simply the legal equivalent of the Sean Hannity, no matter how many crazed partisan rants Scalia might indulge himself in. We might get there in the future (or not), and we might get some decisions that sure look very partisan, but that’s not where we are now. It’s simply not true that there are five solid votes (or even four solid votes) for whatever wacky, ad-hoc legal theories GOP spinmeisters come up with.
Yes, four of those Justices are strongly conservative by all measures, but there is a real difference between supporting a long-standing judicial program and simply doing whatever the short-term partisan preferences of the Republican Party might be, even though those things will naturally (and quite legitimately) overlap much of the time. I do believe that Bush v. Gore was decided on ad-hoc partisan grounds…but that’s 12 years ago already, and I don’t think that anything since then shows that the Court’s conservatives are merely partisan hacks.
Will Wilkinson points out that Fallows’ argument isn’t supported by the evidence:
[I]t would seem that Mr Fallows “long-term coup” amounts to George W. Bush winning a presidential election, the ACLU prevailing in a first-amendment case before a not-very-activist Supreme Court, a few states implementing popular voter-ID laws to no clear effect, and senate Democrats refusing to suspend supermajoritarian procedural rules. This looks to me more like a list of things Mr Fallows finds upsetting than the slow-motion demise of American democracy.
Wilkinson brings up a fact that often seems to be forgotten in discussions of the left’s current bete noire; namely the fact that the American Civil Liberties Union was on the side of Citizens United in the Citizens United case. Last time I checked, the ACLU was not exactly a defender of corporatism. In any event, Andrew Sullivan responded to Wilkinson with this:
[W]hen you look back at how the Court tried to sabotage the New Deal under Roosevelt – under far more desperate economic circumstances – you see that naked politics has never, alas, been absent from the Court. What’s different now is a reversal of roles in which the president is acting according to the old norms and the court is actively reactionary. Under Roosevelt, the Justices were being conservative, trying to preserve the old order under radically changed circumstances. Under Obama, they are reactionary, seeking to undo a century of precedent for federal power. If the ACA is struck down on these radical new grounds, the stakes will be very clear. If the Tea Party keeps control of the GOP and the GOP wins another presidential election under Romney, the next appointees are likely to be more radical still. If there’s one thing Romney will aggressively pander on (is there anything he won’t aggressively pander on?) it’s the Court.
This strikes me as a rather odd historical interpretation of New Deal Era Court for several reasons. First of all, the parties who were acting in an unprecedented manner at the time were not the Justices of the Supreme Court, but the Congress and the President who were pushing through legislation that was unprecedented in American history and vastly expanding the power of the Federal Government far beyond any of the boundaries that had previously set. The fact that these measures may or may have not been politically popular but, as far as the law is concerned, that fact is, or at least ought to be, entirely irrelevant. The question that the Justices were being presented with in cases like Schechter Poultry Corp. v. United States was whether these laws, unprecedented in the history of the United States, were a permissible exercise of Congressional power. They answered in the negative, largely because existing precedent at the time made it clear that this was the correct answer. It was President Roosevelt who responded to decisions like this by declaring war on the Supreme Court for ruling in a manner he disapproved of and proposing a Court Packing Plan that even his own party in Congress refused to support. Why, exactly, is it that it’s the Supreme Court that was the villain in this scenario? And, why, exactly, is it considered admirable that, in the end, the Supreme Court bowed down to Roosevelt’s bullying?
The view of history reflected in Sullivan’s post reveals what I think is a mistaken and potentially dangerous view of the law, the role of the Supreme Court in our political system, and the Constitution. It isn’t the job of the Supreme Court to make decisions that are politically popular, or decisions that help the most number of people, or decisions that are deferential to the popular will. It is their job to interpret the law in accordance with the Constitution and past precedent, recognizing as always that precedent is subject to change if found to be incorrect, and rule accordingly. The fact that this might mean that a politically popular piece of legislation gets struck down is, in the end, something that is wholly irrelevant to the task that the Court is assigned in our Constitutional system.
Now, I will be the first person to admit that the Court has not exercised its Constitutional functions perfectly over the 223 years of its existence. We can all point to decisions the Court has made that are, in retrospect, grave mistakes. Some of these cases, such as Korematsu v. United States, remain good law to this day. However, it is a mistake I think to judge the entire institution by those mistakes, or to reject its role in favor of the majoritarian mob of Congressional dominance over the law. The fact that Congress wants to do something doesn’t mean that it should be allowed to do it, and the fact that the Supreme Court might, on Thursday, say that the PPACA is unconstitutional does not mean that it is illegitimate just because the “enlightened” likes of James Fallows disagree with it.
