This post will digest my thoughts of some recent discussion about the Court’s legitimacy and what would happen if the mandate is struck down, and relatedly, preemptive efforts by the Jeffs (Toobin and Rosen) and others to plead with the Court not to strike it down (under the supposition that they perhaps know the Court has already decided to do just that).
Ilya Somin argues that striking down the mandate would not harm the Court’s legitimacy because the majority of the public want the law to be invalidated (and manages to work in Kelo)!
Claims that a decision striking down the mandate will undermine the Court’s “legitimacy” founder on the simple reality that an overwhelmingly majority of the public wants the law to be invalidated. Even a slight 48-44 plurality of Democrats agree, according to a Washington Post/ABC poll. Decisions that damage the Court’s legitimacy tend to be ones that run contrary to majority opinion, such as some of the cases striking down New Deal laws in the 1930s. By contrast, a decision failing to strike down a law that large majorities believe to be unconstitutional can actually damage the Court’s reputation and create a political backlash, as the case of Kelo v. City of New Londondramatically demonstrated.
Striking down the mandate will damage the Court’s reputation in the eyes of many liberals and some legal elites. But a decision upholding it will equally anger many conservatives and libertarians, including plenty of constitutional law experts.
Mike Rappaport makes a similar point about the ACA’s unpopularity, in contrast with the popularity of FDR and the New Deal:
But this comparison with the New Deal is not well taken. The Obama Administration and the health care law do not have anything like the popularity that the Roosevelt Administration and the signature items of the New Deal had. During the New Deal, the Roosevelt Administration and the Democrats were a political juggernaut as compared to the present day anemic Obama Administration. As I show in this paper, Roosevelt and the Democrats won landslide after landslide, in the Presidential election of 1932, in the midterms of 1934, and in the President election of 1936. Obama and the Democrats, however, took power in 2008 (after the Democrats won significant victories in 2006), but then were walloped in the midterm elections of 2010, losing 63 seats in the House. Moreover, a significant portion of those losses were due to the passage on party line votes of the unpopular health care law. By contrast, much of President Roosevelt’s agenda was passed with enormous majorities, including with significant Republican support (small as it was). . . .
The bottom line here is that the Obama Administration and the health care law are not the New Deal and Social Security, even though liberals keep imagining that they are. If the Supreme Court decides to strike down the law as an unprecedented exercise of federal power, the Court need not fear a repeat of the New Deal.
The WSJ had this Op-Ed, titled “Targeting John Roberts: The Left Tries to Intimidate the High Court on ObamaCare”:
The latest effort includes taunting Chief Justice John Roberts that if the Court overturns any of the law, he’ll forever be defined as a partisan “activist.”
Senate Judiciary Chairman Pat Leahy recently took the extraordinary step of publicly lobbying the Chief Justice after oral argument but before its ruling. “I trust that he will be a Chief Justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch,” the Democrat declared on the Senate floor. “The conservative activism of recent years has not been good for the Court.”
He added that, “Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.”
And there is this interesting quasi-rebuff of Barnett—he may be our intellectual godfather, but he is not a pied piper.
The left is playing up the libertarian legal views of academic Randy Barnett in particular, to suggest that he’s a pied piper for the conservative Justices. We often agree with Mr. Barnett, who has written for these pages, but on ObamaCare his influence has been overstated. Lawyers David Rivkin and Lee Casey were far more consequential in developing the legal and Constitutional case.
As recently as the gun rights case McDonald v. Chicago in 2010, a conservative majority ignored Mr. Barnett’s pleas to revive the long-dormant Privileges and Immunities Clause. Justice Antonin Scalia quipped during oral argument that this view was “the darling of the professoriate,” and libertarian legal activists denounced him for it. But in the Court’s 5-4 ruling, Justice Samuel Alito employed the conventional legal analysis known as substantive due process. So much for the primrose path to the 19th century.
Ed Whelan makes an interesting point–if a Justice switches a vote, and some Jeff-Toobin-like-figure finds out, what will that do to the Court’s legitimacy?
Specifically, it’s reasonable to assume that a year or two from now (if not sooner) some reporter will provide the “inside story” of what happened at the Court. And little could be more damaging to the reality or perception of the Court’s independence than evidence that a justice changed course from his vote at the post-argument conference in apparent response to the intimidation campaign
Likewise Randy compares Chief Justices Roberts to the earlier Justice Roberts:
Rubin and Parker’s columns made me wonder whether President Obama, Senator Leahy, and pundits like Jeff Rosen have now put Chief Justice John Roberts in the same position as FDR put Justice Owen Roberts. Had the Chief Justice already provided the fifth vote in conference to uphold the ACA, and had these critics quietly respected the deliberations of the Court after the case was submitted, nearly everyone would have accepted that Chief Justice Roberts’ decision to uphold the ACA was motivated by legal rather than political concerns. Now, however, if the Chief Justice rules to uphold the ACA after all these nonlegal pleas and threats, he will always be suspected by both supporters and opponents of the ACA of having changed his vote in response to this political pressure. As with Justice Owen Roberts’ vote, the supporters of the law will cheer and the opponents will complain, but both groups will have reason to believe that Chief Justice Robert’s decision reflected political considerations rather than his considered legal judgment in a close case. And, because Supreme Court deliberations are secret, he cannot defend himself by revealing that he did not in fact change his vote after conference.
Years from now, some historian may try to rescue Chief Justice Roberts’ reputation as Barry Friedman tried to rescue Owen Roberts. But until then, thanks to the President, Senator Leahy and the pundits and professors who have so loudly called upon the Chief Justice to decide this case politically or risk the legitimacy of the Court, should he now decide to uphold the ACA, he will always be suspected of being the second Justice Roberts to switch in time.
Mark Tushnet pushes back against the intimidation meme.
Paul Horwitz raises the broader question about the point of all these post-argument blog posts from the left and the right.
What is the point of the countless online posts and articles from Jeffrey Rosen, Randy Barnett, Ilya Somin, several Balkinization posters, and so on that came after both the oral argument and the vote in the ACA litigation?
We might divide those posts into two categories. The first consists of more or less substantive arguments about what the Court might or could say in an opinion. Some of them have been quite interesting. I’m frankly not sure what the point of any of them was. The tone of many of these posts, at least in my view, was neither highly partisan nor especially disinterested. They read at least a little as if the writers were trying to influence the Court’s opinion(s), but that prospect seems unlikely, especially given the timing, although perhaps the writers hope to influence the course of a paragraph or two here and there. Really, though, they gave me a sense of bewildermant about audience. Of course one can write for oneself and perhaps that’s what they’re doing, and then one can write for the best reason of all — money, or substitute goods — and perhaps that’s all that was going on; a writer’s gotta write. But usually a conversation presupposes a recipient of the communication, and that seemed oddly ambiguous or lacking here.
The other set of posts have been thick on the ground lately: posts and articles about how a decision in this case will affect the legitimacy of the Court or the reputation of the justices, or how public opinion on the ACA will intersect with such a decision, and so on.
I think Mark and Paul are right—the audience is not the Justices or clerks, but the public at large. This is really how this movement began.
That leaves the possibility that Mark raises, which is that the writers are speaking primarily to opinion-makers and secondarily to the public: that all this is a matter of trying to set the terms of the discussion going forward, and particularly the political script for each side to follow. In such a scenario, the arguments made on either side may (and probably must) be plausible or even true, but their plausibility or truth is almost beside the point. The point is to determine in advance how the political conversation will run.
I’m not a total naif about this, but it still strikes me as troubling. For some of the individuals involved, there’s a clear stake involved in this, either because they’re political partisans or because any and every divisive issue is an opportunity for fund-raising, seeking solidarity goods, and so on. (“Armageddon is nigh; click here to give us money to fight against it.”) For others, especially scholars engaged in such arguments, the best one can say, I think, is that they’re taking a vacation from being scholars to write such posts, and that we’re more than welcome to discount all their subsequent scholarship and blog posts as much as we see fit. (How you characterize Rosen is up to you, although it seems to me that by having more than one hat he ends up raising questions about all of them.)
Maybe it’s softening the battlefield (by both sides) in anticipation of the Court’s decisions, laying out the themes that both sides expect to use after the decisions come down. “The Court’s a captive of partisan Republicans”/”It’s obnoxious [again, one of Parker’s words] to criticize the Court for partisanship.” If that’s what’s happening, it’s interesting that the battlefield seems to be one where the Court has invalidated the Act. Neither Democrats nor Republicans seem to be working out plans for using a Court decision upholding the Act for political gain. Maybe they know something I don’t about how the case is going to come out. (But, I do know that good strategists draft one press release to distribute if the Court comes out one way and another to distribute if it comes out the other. The NAACP archives, for example, have this sort of “dual” press release ready to go before the Court’s decision in Brown v.Board of Education.)
I think Randy is implying that the news of the vote leaked from the conference.
To be continued.
Update: The LA Times has this piece, from the other perspective, responding to the WSJ and WaPo columns cited above, titled “Conservatives worry that John Roberts will ‘go wobbly’ on Obamacare.”
Poor Roberts, buffeted by the winds of lefty public opinion. Maybe we can steel his spine by shaming Sen. Pat Leahy, Jeff Rosen of the New Republic and, of course, Barack Obama for tempting him to throw a case. (Not that we would tell Roberts himself how to do his job.)
Really, this is silly. First, Roberts is a life-tenured judge whose time on the court is likely to stretch far into the future. Second, give him some credit for knowing his own mind. Perhaps that mind will lead him to seek a bipartisan consensus in the healthcare case; such “political” jurisprudence is not unprecedented. But the idea that he can be intimidated is bonkers. So is the notion that commentators can’t advise him on how to vote.