Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won’t get near the first two right now, but I’ll hazard a guess on what the Court is likely to decide tomorrow: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Three reasons for my confidence:
First, Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court’s notorious decision in Bush v. Gore.
The Supreme Court can’t afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can’t threaten to withhold funding from the other branches) or the sword (it can’t threaten police or military action). It has only the public’s trust in the Court’s own integrity and the logic of its decisions — both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public’s trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.
It doesn’t matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?
Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Judge Laurence Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge’s logic was lucid and impeccable — so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.
Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care — given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).
Okay, so I’ve stuck my neck out. We’ll find out tomorrow how far.
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This notion that the supreme court has no teeth is ridiculous to the point of stupid. It has many times made decisions that flew in the face of popularly supported ethic, particularly high profiles cases involving civil rights may be remembered by the author if he put his mind to it, as he failed to do with this ridiculous article. Let’s completely ignore the fact that they are lifetime appointees beholden to no one for their continued authority as they are (as the President is so fond of pointing out in regards to this case) “unelected” and simply review the many times they’ve done exactly what the author says they can’t do. The author brings to mind the amazing contitutional law professor Presidents inability to cite a case where the supreme court struck down a federal law. While I can’t willingly follow the authors weak example in pretending to know exactly how the court will rule, if this articles example of intellectual continuity is prescient of the authors ability to scry supreme court decisions, then it’s almost certain that (like the proverbially maligned bad weatherman) if the author predicts sun, we’d best bring umbrellas to this particular picnic.
So the Supreme Court should affirm the Affordable Care Act because a 5-4 vote would appear partisan. Yet it was OK for an act that affects 17% of the economy to be written behind closed doors, brought to a vote by manipulation of Senate rules in an unprecentdented way for something of this import, and passed without a single Republican vote. Incredible that the constituionality of the act was secondary in the rationale given by Mr Reich to apearance and partisanship.