Shifting attitudes on (and about) the court

SHIFTING ATTITUDES ON (AND ABOUT) THE COURT…. The shifting perceptions and expectations about the judiciary and health care reform have been fascinating, albeit frustrating, to watch. Dahlia Lithwick the other day highlighted the unexpectedly fast evolution.

[J]ust nine months ago, it was an article of faith among court watchers that President Obama’s health care reform plan would be upheld at the Supreme Court by a margin of 7-2 or 8-1. Today it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision. What changed between last March and last Monday?

To review: When the first lawsuits were filed challenging the law in March 2010, the conventional wisdom was that they were little more than a Tea Party stunt. “Several constitutional law experts said this week that it is somewhere between unlikely and hard-to-imagine that the Supreme Court would strike down the new healthcare law,” wrote David Savage at the Los Angeles Times. He quoted George Washing University law professor Orin Kerr, a former Kennedy clerk, saying that “there is a less than 1 percent chance that the courts will invalidate the individual mandate.” In Newsweek in September 2010, Stuart Taylor quoted Walter Dellinger, acting solicitor general under President Clinton, predicting an 8-1 vote at the high court, and Tom Goldstein, another prominent court watcher and litigator, calling for a vote of 7-2.

The problem isn’t that credible experts like Dellinger and Goldstein don’t know what they’re talking about; they clearly do. The problem has to do with the willingness of certain justices to stick to their principles, as compared to jurists who are, shall we say, a little more ideologically malleable.

The case that appeared to seal the deal for reformers was 2005’s Gonzales v. Raich, dealing with use of the Commerce Clause to regulate marijuana sales, even in a matter in which the product did not cross state lines, and wasn’t part of any marketplace (the defendant grew the marijuana at home for medicinal reasons).

Scalia took a sweeping view of the scope of Commerce Clause power: “The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce…. Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

Point, set, match. A justice who believes this couldn’t possibly rule against the Affordable Care Act, right?

Wrong. About a month ago, Scalia (joined by his Mini Me) wrote a stinging dissent in a case called Alderman v. United States in which he took largely the opposite view of Commerce Clause power, rejecting some of the same principles he agreed with five years earlier.

Court watchers, perhaps having to reevaluate their assumptions about Scalia’s commitment to his own beliefs, quickly realized justices that wanted to rule against the health care law may very well start with the answer, and then work backwards to rationalize their ideological preference.

Simon Lazarus has a thoughtful post about all the ways in which the court’s more conservative justices — not just Scalia but also Kennedy and Chief Justice Roberts — “will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.” Reading Raich against the Alderman dissent, I am not sure all the justices are terribly bothered at the prospect of performing such gymnastics. Supreme Court reporters like to believe that the justices are invariably hemmed in and pinned down by their prior decisions, and in a perfect world they might be. But if we learned anything at all from Bush v. Gore, it’s that in landmark cases with huge symbolic stakes, justices on both sides of the aisle can get all kinds of creative.

Adam Liptak noted today that the legitimacy of the court may be questioned if politics dictates outcomes. Two Democratic-appointed judges have upheld the constitutionality of the ACA; two GOP-appointed judges have done the opposite. On the Supreme Court, Democratic-appointed justices make up the center-left bloc; GOP-appointed justices make up the conservative bloc.

“[S]ome scholars are already wondering how much damage, if any, a party-line ruling striking down the law would do to the court’s prestige, authority and legitimacy,” Liptak noted. I can’t help but wonder if the justices care far less than those scholars about the judiciary’s reputation.