Don't Wish For Judicial Overreach
Given the hostility the Republican appointees on the Supreme Court showed to the Affordable Care Act during oral arguments this week, some progressives are seeking a silver lining. At least, some have argued, striking down the ACA would substantially undermine the legitimacy of the conservative-dominated federal courts. And even better, particularly if the Supreme Court strikes down the individual mandate while allowing the rest of the legislation to remain in operation, there’s the possibility that the resulting pressure on insurance companies facing an adverse-selection spiral would lead to a health care reform package better than the ACA. Should progressives see conservative judicial overreach as being as much opportunity as crisis?
Alas, sometimes a devastating defeat is just a devastating defeat. Claims that striking down the ACA will substantially undermine the legitimacy of the Supreme Court are part of an extensive tradition of predictions that have generally turned out to be erroneous. And hopes that something better will grow in the wake of a destroyed ACA are probably too optimistic.
Judicial legitimacy is admittedly a somewhat slippery concept, and whether the ACA should be perceived as undermining the legitimacy of the Supreme Court does in some measure depend on what definition one is using. Certainly, I agree with arguments that a decision striking down the ACA should be "illegitimate" in a normative sense. Using fundamentally specious arguments to strike down federal legislation on behalf of powerful entrenched interests that are already grossly over-represented in the American political process represents judicial review at its least defensible. There is no doubt that the Court will suffer a loss of legitimacy in the eyes of many liberal intellectuals and strong supporters of President Obama.
But the more meaningful question is whether the Court will suffer a net loss of legitimacy among either political elites or the general public. Here, there's very little evidence that it will. Bush v. Gore, a decision just as nakedly partisan and even less legally defensible than a decision striking down the ACA would be, did not undermine popular support for the Court or lead to a rash of executive officials refusing to obey its orders (Democrats liked the Court less ... but Republicans thought better of it). Nor would striking down the ACA be the first politically controversial decision the Supreme Court has issued. Some landmark liberal rulings have created a semi-permanent Republican apoplexy about liberal "judicial activism" that becomes more remarkable as we go past four decades without a consistently liberal median vote on the Court. And yet, this selective outrage has comfortably coexisted with a willingness to both use the courts for conservative ends and ongoing public support for the Court.
It is true that a decision striking down the ACA would inevitably be 5-4, which many legal observers believe would decrease the legitimacy of the decision. The problem here is that evidence that the vote lineup influences public or elite support for judicial opinions is scant. Consider the most divisive Supreme Court decisions in recent history. Miranda v. Arizona was 5-4, but that's the exception. Brown v. Board and Cooper v. Aaron—both of which the directly affected states and their representatives not only bitterly opposed but refused to implement—were of course unanimous. Engel v. Vitale—the 1962 school prayer case that generated more hate mail than any case in the Warren Court era and also had serious implantation problems—had a mild solo dissent. Roe v. Wade was 7-2. It's substantive results—not the number of dissents—that determines the reaction to Supreme Court decisions.
One potential counter to this is that a decision striking down the ACA would be different, it would be a 5-4 decision that would break down along strict partisan lines. By showing the Court to be nakedly political, it might undermine the Court in a way that previous rulings have not. My response to that would be simple: Kelo v. New London. The fact that the opinion was written by one Republican nominee and joined by two others didn't stop it from being fiercely criticized by Republicans and sparking a legislative reaction in many states. And this makes sense when you think about it. In essence, the argument that the partisan breakdown changes things assumes an audience sophisticated enough to be aware of recurrent ideological vote patterns on the Supreme Court but unsophisticated enough to think that the Court is nonetheless apolitical if these ideological divisions map onto 1950s party coalitions rather than 2010s party coalitions. I'm not sure how big this audience is, but I'm confident that it could comfortably fit in a single-occupancy freshman dorm room. No conservative Republicans think of John Paul Stevens or David Souter as being on their team no matter who appointed them.
This is not to say that the Court can do anything it wants and remain its standing with elites and the public. A decision completely lacking in elite or popular support might have this effect. Unfortunately, this scenario wouldn't describe a decision striking down the ACA. Such a decision would have the strong support of the political party that controls the House of Representatives and 48 seats in the Senate, and if current polling holds up would have the support of a majority of the public as well.
Even if a bad decision wouldn't destroy the legitimacy of the Roberts Court, could it possibly lead to a better health care system in the relatively near future? Again, I wouldn't be terribly optimistic. First, the Court may well strike down the ACA as a whole, which would entrench the status quo for a long time. Even if the Court chose to strike down only the mandate, the emergence of single-payer is a pipe dream. The influence of insurance companies that will compel Congress to pass a fix will also prevent the enactment of a superior European-style health care system. The much more likely outcome is a less progressive version of the ACA, with the ranks of the uninsured made higher by spiraling insurance costs in the meantime. It would be better if just the mandate was struck down, but it would still create a political context in which getting legislation even as good as the ACA would be a long shot. And in the enormously unlikely event that a single-payer system was the result of the heightened contradictions, as Jamelle Bouie notes there's no reason to believe that it wouldn't also be vulnerable to a judicial challenge.
The only good outcome that could come from the Supreme Court assessing the constitutionality of the ACA is if it upholds it. Should the Court strike it down, the only question is how bad the results will be.