Judicial Legitimacy

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

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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

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.