The Justices and Their Agendas

by Jonathan Cohn | June 21, 2012

[Update at 10:30 a.m.: The Supreme Court just finished issuing its decisions for the day; the health care cases were not among them. The court convenes again on Monday, the last scheduled session of the term. It could deliver its verdict then. Or it could decide to convene again one or more days next week, as it sometimes does at the end of the term. The Court will likely make such an announcement later today, according to SCOTUSblog. Keep in mind that were still awaiting verdicts on five other cases, including the lawsuit challenging Arizonas immigration statute and one challenging life imprisonment for minors.]

By now you’ve probably read Ezra Klein’s New Yorker story about the individual mandate and the evolution of conservative opinion about it. If you haven’t, you really should. It’s a terrific explanation of what political scientists call “motivated reasoning”: the tendency to change your mind about a policy issue in order to advance your political interests. It’s a tendency to which all of us, from all ideological perspectives, are prone, although I’d argue it’s a lot more prevalent on the right these days.

For the moment, my own interest in the article is narrower. The Supreme Court could issue a ruling on the mandate as early as Thursday morning. Even now, the possibility that the challenge might prevail is difficult to contemplate, in part because the political transformation behind it was so breathtaking. Conservative intellectuals dreamed up the mandate and championed the concept for many years. Eventually Republican politicians embraced it and, famously, the one now running for president actually signed a mandate into law. Now those same conservatives and Republicans say the mandate is a bad idea. And not just a bad idea but a terrible idea. And not just a terrible idea but a tyrannical idea. That’s some highly motivated reasoning, for sure.

The shift in the constitutional landscape has been no less dramatic. Andrew Koppelman, the Northwestern University law professor who has written about this case for Salon and TNR, has been tracing the history of the legal argument against the mandate. (He’s writing a book on the subject.) The first serious suggestion of constitutional problems he found was in the late summer of 2009—magically, right around the time that unified Republican opposition to the Obama health care plan, which had been building for months, became a political fact of life. Tellingly, even libertarians like Case Western's Jonathan Adler and George Mason's Ilya Somin, frequent posters at the Volokh Conspiracy, were skeptical of the argument when they first read it. Although sympathetic in principle, they felt the mandate clearly fell within existing limits of federal power, at least as the Supreme Court had defined it for nearly a century. Adler, after reading an initial version of the brief against the mandate, said “I do not find this argument particularly convincing.” Somin was even more definitive about whether the anti-mandate argument was correct: “The answer under current precedent is clearly ‘no.’”

Both men have changed their minds, they say, based on arguments of scholars like Randy Barnett of Georgetown University have put forward. (Barnett famously developed the supposed distinction between activity, which the government may regulate, and inactivity, which it may not.) I have no problem believing that. When it comes to interpreting precedent, there’s no such thing as absolute right and wrong, any more than there is clear-cut meaning to the constitution itself. But even many prominent conservatives, including three highly respected appellate judges, read the record the way Adler and Somin did before inactivity and broccoli became part of the conversation. These conservatives don’t necessarily love federal regulatory power and they certainly don’t love the Affordable Care Act. But the precedents, they say, are on the side of the mandate. Polls suggest the legal community at large agrees. That ought to tell us something about how less motivated thinkers view the relevant legal principles.

Supreme Court justices can overrule past rulings. And sometimes they should. It was the willingness to disregard precedent that gave us desegregated schools and lunch counters, and more recently sexual freedom. But justices are supposed to deploy this power sparingly, saving it for clear-cut cases in which liberty or the foundations of democracy are at stake. It’s difficult to understand how the health insurance mandate qualifies, when even challengers to the law admit a simple change of rhetoric (calling the mandate a “tax”) or timing (requiring people to get insurance when they get sick, rather than beforehand) would make the law plainly constitutional. The fact that 30 million people will depend on the law for health insurance, while many more derive security from it, ought to mean something, too. As Kevin Drum wrote the other day:

It’s been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can’t think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock—but it was also a unanimous decision and, despite FDR’s pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. 

Chief Justice John Roberts and Justice Anthony Kennedy, upon whose votes a decision supposedly rests, could do wonders for the court’s reputation by upholding the law or, at the very least, invalidating the mandate in a minimally disruptive way. Precisely because they seem to hold the law in disregard, a judgment to uphold it would signal a determination to separate law from politics. But the opposite is true, as well. The risk of overturning the Affordable Care Act is not an immediate public backlash. Polls suggest most people don’t like the mandate and quite a few think the Court has already struck it down. No, the risk is damage to the Court’s long-term reputation, in the wake of decisions like Bush v. Gore and Citizens United. It’s the risk that people will come to believe Supreme Court justices bend logic to fit their political predispositions, just like everybody else does.

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