Supreme Power

Courts, Controversy and Conservatives

There is an old and respected approach to judicial review of controversial and essentially political issues that holds that judges should do almost everything possible to avoid wading into the dense thicket of politics.

If Chief Justice John Roberts and his fellow conservatives on the U.S. Supreme Court were really conservative they would rule on the controversial Affordable Care Act (Obamacare) on the narrowest possible grounds. They might even seriously considered not ruling on the merits of the law under the old and accepted principle that the case is simply “not ripe” for adjudication since no one – at least not yet – has been “harmed” in the legal sense by the health insurance mandate and other aspects of the still new law.

Hardly anyone thinks either of those approaches is likely from the Roberts Court, particularly after last week’s marathon hearings. You will get even money today that Roberts will lead his thin 5-4 conservative majority in the direction of at least ruling the mandate unconstitutional. The odds are a bit longer that the Court will throw out the entire law. As they say, time will tell.

What interests me today is what President Obama, the former constitutional law professor, will do if the high court strikes down all or part of his signature accomplishment? A little history may be instructive; history I suspect Professor Obama knows well.

The most striking parallel to the current situation happened in 1935. The then conservative dominated Supreme Court declared unconstitutional the signature domestic piece of President Franklin D. Roosevelt’s legislation to battle the Great Depression. Chief Justice Charles Evans Hughes, every bit as much if not more a politician than Roberts, assembled a unanimous Court – including three real liberals – to deep six key features of FDR’s National Industrial Recovery Act.

Roosevelt was brought low by a famously modest case -Schechter Poultry Company v. United States – a decision that prompted the great liberal Justice Louis Brandeis to remark to an FDR associate that the case marked the end of “this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.” Given that sentiment, Brandeis, were he on the Court today, might just be a vote against Obamacare.

Roosevelt’s reaction was, of course, to blast the Court as living in “a horse and buggy” era with regard to the Commerce Clause of the Constitution and after his re-election FDR attempted, with disastrous consequences, to enlarge the Supreme Court. Roosevelt’s ideas about “judicial reform” were so outrageous that no president since has dare even suggest action to limit the scope or change the make-up of the Supreme Court. Instead we now fight epic battles over every new justice who is appointed and partisan political considerations, never far removed from judicial nominations, is now guaranteed to be front and center.

Obama will not, I predict, pull a Roosevelt. He knows, as the wise Jon Meacham wrote recently, “Justified or not, the Supreme Court has a kind of sacred status in American life. For whatever reason, Presidents can safely run against Congress, and vice versa, but I think there is an inherent popular aversion to assaults on the court itself. Perhaps it has to do with an instinctive belief that life needs umpires, even ones who blow calls now and then.”

Obama could, in theory, dust off some really old ideas and suggest a Constitutional amendment, as the great Wisconsin Sen. Robert La Follette did in the 1920′s, that would allow Congress to overturn Court decisions or, under certain circumstances, put Supreme Court decisions up to a popular vote. Of course, President Obama won’t do anything of the sort.

Obama is then really only left with the power of persuasion. He might suggest, as one wag did, that when the opportunity for insurance coverage for millions disappears they take their complaints to Antonin Scalia. Better yet, Obama could begin a real national conversation – including involing United States Senators who approve Supreme Court nominees – about the kind of Supreme Court the nation needs in the 21st Century.

You have to hand it to Republicans, they have been running against the Court for years. What prominent GOP lawmaker doesn’t have the talking points down regarding “activist, liberal judges” who legislate from the bench? That line of political positioning has been enormously successful in positioning a very conservative majority on the current Supreme Court to get away with precisely what conservatives have been critical of for years – legislating from the bench.

Set aside for a moment the merits of the Affordable Care Act and merely consider what some of the justices from the left and right said last week. As columnist E.J. Dionne noted, Justice Samuel Alito sounded like a House subcommittee chairman quoting Congressional Budget Office figures and wondered whether the government could mandate that we all have burial insurance, while Scalia went off with a weird analogy about the government mandating broccoli. The liberals didn’t comport themselves much better with some commentators noting that they tried to come to the rhetorical aide of the Obama Administration’s Solicitor General who had trouble at times articulating the best arguments in favor of the law.

But judges aren’t supposed to be super legislators, they shouldn’t care about policy or vote counting (beyond counting to five) and they have no business trying to bail out a lawyer who is fumbling his case. Such behavior paints the entire Court with an activist brush. What is needed with the current case, and I would suggest with the money in politics case Citizens United and the who will be president case Bush v. Gore is real, reasoned judicial restraint.

The Court has a legitimate role in the health care case in defining – or refining – the scope of the Commerce Clause, but the justice could also acknowledge the obvious. We’ll have an election in a few months where Obamacare will be one of the fundamental issues. All the Republican candidates say they want to repeal the law. Democrats will fight to keep it. That is the kind of messy and important debate we have elections to resolve. Real judicial restraint would find the Supreme Court – conservatives and liberals – searching for a super majority way to rule narrowly and leave the politics to those who are elected to vote on policy questions.

If the Court overturns the health care legislation, the president will undoubtedly take issue with the decision, but he ought also to use the moment to educate more broadly about how judges should approach their jobs, the Court’s sacred status notwithstanding.

 

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