Levinson Confirms My Prediction. Obamacare, Constitutional Moments, and the Supreme Court

January 3rd, 2010

A while back I predicted that if the Supreme Court strikes down any portion of the Democrat’s individual healthcare mandate, halting the greatest piece of landmark legislation since the Civil Rights Act of 1964, the left would herald a “Constitutional Moment.”

Mark Tushnet fell right into my prediction.

Now Sandy Levinson has joined the fray in his recent post, predicting the aftermath of Randy Barnett v. Catherine Seblius:

It really does boil down to whether the Conservative Majority would dare to strike down the most important domestic social policy legislation in the past forty years, which, like the Civil Rights Act of 1964, would have passed only after vicious filibusters. But let’s assume they do. Then what?

So, possibility one is that Barack Obama, the former University of Chicago professor, says “I really regret that the Court came to the decision it did, but we are a country that believes in ‘the rule of law,’ which means that five justices get the final say on what the Constitution means, whatever the rest of us think of their decision. So, until those in the majority have the courtesy to resign or die–and assuming that the Republicans will allow me to place justices more sympathetic to my own constitutional vision on the Court–I will just have to accept the fact that health reform is off the table, given that no other bill is likely to survive the Senate (which, incidentally, is also intellectually indefensible, but that’s as irrelevant as what I think of the Supreme Court’s decision). The Constitution is indeed whatever the Supreme Court says it is, so let’s move on….”

But there are, of course, other possibilities. Perhaps the President would summon up the emotional energy to denounce the decision and to suggest that there is no reason that the country must be in thrall to a group of five “willful men” (since I assume that Ginsburg and Sotomayor will be in dissent against any such decision), anymore, incidentally, than we should continue to be in thrall to an almost terminally dysfunctional Senate. Therefore, he will devote his energies and political skills to a debate about structural fundamentals, beginning with the Supreme Court–should it be packed, should it require a supermajority to invalidate federal legislation, etc.) and moving on to the Senate. Indeed, he will suggest that the use of the veto power on policy (instead of constitutional) grounds is itself an affront to 21st century democracy, so that he would himself be willing to support that diminution in presidential power as part of a grand bargain by which the Senate is transformed into an institution that makes sense for our present world. This is obviously unlikely, but if one is looking for silver linings in a Supreme Court invalidation of the legislation, this would certainly be it for me.

I agree with Levinson, and am certain SCOTUS does not have 5 votes to strike down something this massively popular. But, I am almost intrigued to see the academic and political fallout of this happens. This will be Lochner and Schecter Poultry all over again.

By the way, I am currently blogging from the Royal Caribbean Majesty of the Sea, somewhere outside the port of Nassau, Bahamas. Wireless internet in my state room is $.42/minute, and well worth it.

I’ll be back on Monday.