JONATHAN CHAIT MARCH 20, 2010
Accepting for the sake of argument that Bush v. Gore was arbitrary, I would say that if so it basically stands alone; I'm not aware of any other case in which the Court dropped in, made a decision for apparently pure political reasons, and then told everyone to ignore the logic and decision of the case as a precedent. Could they do that again with health care reform? Sure -- but if that, why not any other program that they disagree with? In which case we all have much bigger problems than the fate of health care reform.
On the other hand, what if they simply find against health care reform by changing precedent. The article referred to above is about "deem and pass," but there are also going to be legal challenges, or at least rumblings about challenges, on a whole host of substantive measures (such as the individual mandate). If the Court goes after health care by changing doctrine, either over Congressional procedure or substance, once again there are bigger problems than health care reform. In the one case, any bill passed with a self-executing rule would be in trouble, and there are lots of those; in the other, well, it would depend on what the court does, but it would be difficult to knock out health care reform without endangering plenty of other laws, many of which are very popular. That doesn't mean the Court won't do it, but only that the real problem in that case is the Court, not health care reform.
Well, first of all, I made a reference to "high-stakes Republican priorities." Let me explain what I meant by that. The Supreme Court needs legitimacy. If they went around handing down Bush v. Gore decisions every year, they'd have a crisis. They do not have limitless power. They need to husband their legitimacy and spend it on those occasions when the stakes are very high -- like, say, the Florida recount. Certainly health care reform is a dramatically higher stakes fight than any other domestic policy battle during the tenure of this court.
Second, the Court obviously needs somebody to bring it a case. Bernstein makes a joke about invalidating the 2000 election on grounds that President Obama was born in Kenya, and of course they'd never do that. They'd need a case that has some patina of legitimacy -- that is, the support of some non-nutty member of the right-wing legal establishment. They have that. They also need somebody to bring them a case. They're probably going to have that.
So at that point, the question becomes, does the Supreme Court majority make an aggressively activist ruling to hand Republicans victory on the biggest policy fight of the last forty years? Probably not, but I wouldn't be too surprised if they did. Bernstein notes that doing so would invalidate scores of other laws. And yes, he concedes, this court has previously made a one-time only ruling whose precedent would not apply to anything else, in order to get its desired result, but they've only done it one time.
Is that supposed to be reassuring? Would Bernstein advise a family member to marry John Edwards? After all, he only had that one affair.