Why the Justices Should Be Careful

by Jonathan Cohn | May 1, 2012

TNR's latest editorial is about the lawsuits challenging the Affordable Care Act and the implications that go beyond health care policy:

The architects of American government wanted to protect individual liberty, from overzealous majorities and an overbearing federal government, so they insulated the Court from political influence and gave it final authority to say whether laws were constitutional. But overruling democratically elected officials is an inherently audacious act, which is why the justices must use their power in this regard thoughtfully. They should presume laws to be constitutional, just as trial courts presume accused criminals to be innocent. And they should at least try to put aside partisan loyalties and policy preferences, making a good faith effort to discern the Constitution’s meaning and to respect precedents. ...
In recent years, American government has become gradually more dysfunctional, as lawmakers have dispensed with traditions like allowing majorities to rule in the Senate or putting some issues, such as lifting the nation’s debt ceiling, beyond partisan politics. The question of who is to blame for the collapse of these mores is a longer discussion for another time. (We place more blame on the right than on the left, though we certainly acknowledge that liberals have played a role.) What is beyond dispute, however, is that a five-to-four decision to invalidate the Affordable Care Act would signal another departure from governing mores—only this time it would be judges, rather than politicians, wreaking the havoc. It would further diminish the Court’s standing, in and out of Washington, and haunt the justices the next time they feel a law—whether a conservative or liberal one—demands judicial rebuke.

We don't know yet how the Court will rule. Smart money still says it could go either way. But if five justices on the Supreme Court do strike down the law, they'll be rewriting the law, whether or not they admit it. Even many conservatives, including two of the best-known conservative judges on the federal bench, think the law falls well within the established limits on federal power. 

Yes, there are times when the justices should declare that the constitution means something different than what their predecessors thought it did. But those are special cases—because violations of liberty are obvious and unambiguous, or because standards of propriety of clearly changed. One such case was Brown v. Board of Education. Another, more recent one was Lawrence v. Texas, the 2003 decision invalidating sodomy laws and a previous ruling upholding them. For reasons I've explained previously and on more than one occasion, I don't think this case meets those criteria. 

The justices may disagree. But, if they do, they'll risk damage to the Court as an institution. Brad Joondeph of the ACA Litigation Blog made this point right after oral arguments ended:

a decision invalidating the ACA (especially one that takes down the Act in its entirety), rendered by a predictable 5-4 split, will serve to reinforce the notion among many Americans that the Court is no more than another partisan institution, one that operates much like the other branches. That would be wrong factually, but I fear it would be the prevalent perception. And such a perception could do real lasting damage to the Court.
The danger seems especially acute given all the other highly partisan, ideological issues presently heading the Court's way. Consider the following cases the Court is apt to decide in the next 2 or 3 years: the Arizona immigration case (to be argued next month); the Texas affirmative action case (to be argued in the fall); the Citizens United sequel from Montana (cert petition filed earlier this week); the constitutionality of Section 5 of the Voting Rights Act (currently percolating in the courts of appeals); the constitutionality of California's Proposition 8 banning gay marriage (currently awaiting a decision from the Ninth Circuit about an en banc hearing); and the constitutionality of the Defense of Marriage Act (also percolating in the courts of appeals).
... steady stream of highly divisive, conservative 5-4 decisions, led off by a decision to invalidate the most important federal statute in a generation, could be toxic. It could take years for the Court to regain its standing among the American public.
This is not a partisan concern. It is a concern--voiced eloquently by Chief Justice Roberts on several occasions--rooted in beliefs about the importance of the Supreme Court, the independence of the federal judiciary, and ultimately the rule of law.

Source URL: http://www.newrepublic.com//blog/jonathan-cohn/103055/supreme-court-obamacare-mandate-legitimacy-precedent