Mark Tushnet’s Recipe for a Constitutional Moment, and more on Obamacare and the Supreme Court

January 4th, 2010

While I am at sea, does not rest.

I previously blogged about Sandy Levinson, and his argument about any opposition to Obamacare yielding a Constitutional Moment.

At Balkinzation, Mark Tushnet continues to draw parallels between the current Obama Administration and the FDR Administraiton during the Court Packing days.

As Sandy Levinson’s posts (including the most recent) have suggested, when we think about the current administration and the Supreme Court, our thoughts almost inevitably turn to the mid-1930s. It’s easy to push the parallels between the Roosevelt and Obama administrations too hard, but some parallelism does seem to be there: taking office mid-crisis, offering ambitious policy proposals with some prospect of success in Congress, and — importantly here — facing a Supreme Court staffed by justices whose ideological formations (or “judicial philosophies,” if you like) contain important elements that could be used to put into constitutional peril some aspects of the administration’s policy proposals. (Here too we shouldn’t exaggerate. The Court in the mid-1930s endorsed an expansive, Hamiltonian interpretation of the general welfare clause, thereby putting its stamp of constitutional approval on the Roosevelt administration’s Keynesian spending programs. The full story is, as they always are, even more complicated.)

The pivotal actor at the Supreme Court during the constitutional confrontations in the mid-1930s was Justice Owen Roberts. Early in the Roosevelt administration Justice Roberts generally cast his votes with the Court’s judicial conservatives. During the 1936 Term he cast his votes with its liberals. After that he reverted to form, as an important recent¬†paper shows. In 1936 Justice Roberts faced and made a choice. It would be nice if we could preserve the parallelism by saying that in the 2010s (Chief) Justice Roberts will have to face and make some choices. More likely, though less symmetrical, Justice Kennedy will be in the first Justice Roberts’ position.

So here is the Tushnet recipe for a Constitutional Moment:

  1. President takes office in the middle of a crisis (Check for FDR and BHO)
  2. President proposes ambitious proposals that enjoy modest chance of success in Congress (Check for FDR and BHO)
  3. Majority of Supreme Court disagrees with the President and opposes these ambitious proposals (Check for FDR, and ?uncertain for BHO)

This seems to be a pretty weak checklist for determining when the President can challenge SCOTUS, much like FDR did during the new deal. A common argument in favor of Constitutional moments is that the majority of the populace support it (as the people, allegedly, did during the New Deal).¬†As commenter Soren noted in a previous post, this bill isn’t even popular, and most Americans oppose it. So, default to something that is kinda popular in the Congress.

In my opinion, a much more likely, is that the majority of the Supreme Court, even Nino, will likely uphold the acts Obama is proposing. Save for Clarence, the mandate will be upheld.

But the fact that Balkinzation is abuzz over this means the left is seriously, seriously worried. Which, gives me much more solace and hope that we can make change we can believe in. Si se puede.