Obamacare’s defenders insist the U.S. Supreme Court wouldn’t dare nuke the reform law in a 5-4 ideological ruling, lest it shatter the institution’s aura of Olympian dispassion. In the words of University of California law professor Richard Hasen, “the court’s legitimacy would suffer in ways which we have never seen.”
When I hear that argument, I’m stricken with deja vu.
A lot of law pundits said the exact same thing in 2000, when Al Gore and George W. Bush were stalemated during Florida’s hanging chad recount crisis. The argument back then was that the high court wouldn’t dare wade into a partisan swamp and deliver the presidency to Bush by one vote. As legal analyst Jonathan Turley told me on Dec. 11, justices care about “the legitimacy of the court,” and Chief Justice William Rehnquist in particular “is cognizant of that damage because he is a student of the Supreme Court’s history.”
One day later, Rehnquist and four other Republican appointees stopped the Florida recount by casting their ballots for Bush — and, sure enough, the high court’s image took a big hit in subsequent Gallup polls, a drop in public approval that has never been fully reversed. Prior to Bush v. Gore, 62 percent of Americans viewed the court positively. The latest Gallup puts approval at 46 percent.
But why should we assume the high court cares about such things? It didn’t in 2000, and it doesn’t now. As seen in the oral arguments on Obamacare, it’s too busy practicing ideological politics. Some of the brethren behaved like tea-partying Fox News commentators (worrying that the government will make us eat broccoli) and political ward heelers (Antonin Scalia, on the advantage of throwing out the whole law: “You’re not going to get 60 votes in the Senate to repeal the rest”). Since when is it Scalia’s business to count Senate votes?
Seven years ago, Scalia voted to uphold a law that criminalizes the private cultivation of marijuana for medicinal purposes; he said backyard weed is interstate commerce. If he respected judicial precedent (a conservative doctrine), he would agree that if private pot is interstate commerce, then surely health care, 17 percent of our GDP, is also interstate commerce. The high court even ruled 70 years ago that the wheat farmers grew for personal consumption was interstate commerce.
Yes, if judicial precedent was the yardstick for a decision, this case would be a slam dunk; in fact, conservative legal icon Charles Fried said last month that the health reform law deserves to be upheld, with all Republican appointees signaling their assent. But despite John Roberts’ vow, during confirmation hearings, to respect precedent, he has flagrantly ignored it in some big cases, most notably the 2010 Citizens United ruling that opened the floodgates for unlimited political spending by labor, corporations, and the rich.
The public is clearly hip to what’s happening at the court. According to a new Bloomberg News poll, 75 of Americans believe the justices will be guided primarily by their political views when they rule on Obamacare, not by the constitutional issues. Only 17 percent cited the latter. That’s a sad commentary on the high court’s waning image, a public attitude that speaks volumes about our hyper-partisan climate.
The court is supposed to be our most nonpartisan redoubt; its credibility hinges on that. But as former Federal Communications Commission Chairman Newt Minow reportedly remarked the other day, “Since Bush v. Gore, I think the court’s reputation has been blemished as somehow being not as independent as it perhaps was earlier in its history.”
In today’s climate, the ideologues expect the court to deliver political favors, the way old urban hack machines used to deliver Christmas turkeys. The conservative Wall Street Journal editorial page revealed this mind-set: “A 5-4 ruling against Obamacare is the least Republicans should expect, given the number of justices they’ve been able to appoint.” (Indeed, if the court rules that way, nixing a constitutional law based on 70 years of precedent, we won’t hear the usual complaints from conservative partisans about “the tyranny of unelected activist judges.”)
But maybe it’s naive for us to assume the justices have ever been insulated from partisan emotions. Granted, last week Scalia in particular seemed to channel the tea-party passions that culminated in the GOP’s 2010 midterm sweep. Shrewd observers of human nature would not find this surprising. As Chicago columnist Finley Peter Dunne quipped 100 years ago, “No matter whether th’ Constitution follows th’ flag, the Supreme Court follows th’ election returns.”
By that measure, what else can we expect from the robed arbiters but a generous dose of raw politics? As Allan Lichtman, a presidential scholar, told me on the eve of the Bush v. Gore ruling, “Look, everyone is human. Nobody is immune from their partisan and ideological views. There is no forum sitting on top of Mount Olympus. Never has been, never will be.” One day later, the court proved his point. It may do so again.
• Polman is a columnist for the Philadelphia Inquirer. Readers may write to him at: Philadelphia Inquirer, P.O. Box 8263, Philadelphia, Pa. 19101, or by email at dpolman@phillynews.com; blog: www.dickpolman.blogspot.com.
Comments (34)
Add commentTypical progressive - when
Typical progressive - when you can't bring a good argument to the table, just resort to mockery.
Supreme Court approval rating is now 41% - up 13% from last month.
Obama has lost his "war" on the Supreme Court.
If for no other reason...
This is why Obama should be re-elected.
Ballots for Bush
I can't believe this silliness still exists. The Supreme Court insists that a state abide by its own laws and is therefore labeled conservative and casting Bush votes. Pure idiocy. I'm also amazed that people still want Obama reelected. His "crowning" achievement is detested by 60%+ of the US and is pending reversal on constitutional grounds. It's amazing the mindless marching of progressives to anything their grand leaders tell them.
Mandatory grow-ops?
It sounds like Polman fragged his own argument for the sake of sticking to his premise of judicial activism: if we HAVE to have health insurance, what else do we HAVE to have?
Is Polman advocating mandates that everyone must grow medical marijuana and wheat? Hardly, but it would seem...
I suspect he intentionally skirted the obvious next question IF the high court decides health care is subject to regulation as an item of interstate commerce: why the restrictions on interstate shopping for the best deal on health care insurance?
The "other four."
My concern is that if it turns out to be a 5 to 4 vote to overturn Obama care, what is it about the Constitution the 4 liberal judges don't understand?
Polman
The issue here is larger than the changes to the health care program of the U.S. (The Affordable Care Act-not obamacare!)
Can nine unelected judges overrule an act of the elected Congress of the United States.
Simple as that.
At some point common sense has to take over.
But alas: I have hoped for common sense before.
Constutional experts
is what seem to appear in every thread regarding any case before SCOTUS. It amusing to read the posting that change as the talking points change. First Obamacare was anti-constitutional for one reason according to these experts. Then the argument changed to another part of the Constitution. And now most want to rely on the Commerce Clause as why its unconstitutional. I'm convinced the decision of the court is not going to be the last battle over HC.
denny writes - "what is it
denny writes - "what is it about the Constitution the 4 liberal judges don't understand". Unfortunately, plenty.
Can we call it "practicing ideological politics" to quote Polman?
Did you see where the Reverend (?!!) Jeremiah Wright popped up over the Easter weekend and accused Justice Clarence Thomas of "worshipping some other god"?
At what point do all these attacks by the left just become laughable?
JUDICIAL ACTIVISM
Roe v Wade
judicial activism
Brown v. Board of Education, Topeka, Kansas (1954)
If Obama had his way
Dred Scott would still be good law.
Judicial activism
Judicial activism: anything I don't agree with because I'm a partisan [filtered word] incapable of considering that my own worldview might be wrong in any way.
The three branches of our
The three branches of our government were ment to have fairly equal power so no one could run things without checks and balances.
Those of you that think the judges can't over turn this need to pick up a history book or take a government class.
They can. Will they? We don't know yet, but contrary to this article would have you believe they have the power and it's up to them to determine how this law fits in and if it's legal. That's they're job on this one, to look at the law and see if it violates our rights as Americans.
Are you all seriously arguing that the judicial system can't be political? LOL
It's one of the three political branches of our government. If it shouldn't be political then politicians shouldn't be appointing these judges.
That's my understanding of government class from over a decade ago. Personally? We need national health care. It's silly and frankly embarrassing that we don't. But this bill is flat out stupid. How many countries out there have healthcare and it hasn't sent them bankrupt or anything? We need to use what has worked around the world in most countries. Our version doesn't put insurance companies(Americans) out of work but sadly we've been behind the world on this one and to correct it, we will have to break the system down and start again. As americans we don't let ourselves admit failure, we just try and fix everything. Doesn't matter if the thing is broke or can't be fixed.
@stu - "How many countries
@stu - "How many countries out there have healthcare and it hasn't sent them bankrupt or anything?"
Are you sure about that?
Rationing perhaps?
Hmmm....
Article 31 of the Iraqi Constitution, courtesy of the Bush administration:
First: Every citizen has the right to health care. The State shall maintain public health and provide the means of prevention and treatment by building different types of hospitals and health institutions.
Second: Individuals and entities have the right to build hospitals, clinics,or private health care centers under the supervision of the State, and this shall be regulated by law.
I don't need to rationalize
I don't need to rationalize the fact that many countries have national health care and do just fine. If its done right that is.
We don't and we're beyond bankrupt.
I personally think we absolutely need national health care, for the betterment of our nation. But this legislation is a farce and will mask and cause more problems. Not to mention tramples on our rights.
@dust - well, we are Iraq,
@dust - well, we are Iraq, aren't we? Please, you can do better than that.
Judicial Activism
Excuse me folks, but apparently there are people involved in this dialogue that have not read nor do they understand some of the citations they offer in defense or advocacy of their point.
I refer to references to Dred Scott, Brown v Board of Education, Roe v Wade, Bush Gore etc.
Please read them carefully again and see if you don't discover that issues they resolved were not appropriate to this discussion.
The question before the Court is not whether justices believe the government has the authority to create a health care program but whether it has overstepped its authority.
I happen to be on the side that says the Court cannot take down or alter a legitimate Act of Congress. Congress HAS the authority to provide for health care and so it has, by a large majority vote,even though the vote was predominently party line.
There are precedents for their action and I believe the Court will uphold the Affordable Care Act in total.
If it does not you can hoot and holler and whoop it up and call me all kinds of awful names.
But YOU might be among those LOSING as a result.
That depends on legitimate
That depends on legitimate act. This might violate our constitutional rights. That's the point of the court taking on the case, to determine if it is legitimate.
If they find it's outside of our laws and are incapable of striking it down, then what do you think is the purpose of the courts in the first place?
They have the right and authority.
Obamas statements trying to push his views on the court were even clarified farther to say he isn't questioning the rule of the courts in this because he got called out. He can't do anything just as much as congress can't. It's in the courts hands and thyre interpretation of the laws and law in question.
Well, if we are Iraq...
why is universal health care there such a good idea but not here?
That's not intended as a defense for any given particular of the current health care law, or a refutation of any legitimate criticism. Just an observation regarding framework.
about Iraq:
without belaboring the point, Iraq had to be cajoled, and then strong-armed, into striking (paraphrase) "anyone but a Jew can be a citizen of Iraq;" from its constitution. Also, the framers felt it was important to explicitly state that the trade of women and kids for sex slaves was expressly forbidden. Welcome to the 21st century, Iraq. That might put "free Iraqi health care" into perspective. I wouldn't be doing cartwheels over their enlightened view of it.
@Grendel: you are completely
@Grendel: you are completely right. In fact, Abe Lincoln once said, "I will say then that I am not, nor ever have been in favor of bringing about in anyway the social and political equality of the white and black races," so I guess we can safely say that the abolition of slavery wasn't such an enlightened thing to do, either.
Because we all know either every single idea/concept a person or nation holds is awesome and enlightened, or none of them are. THERE IS NO MIDDLE GROUND.
Social Security & Medicare
If the Supreme Court overturns the Affordable Care Act, the validity of Social Security & Medicare will also come into question. Both those programs have mandates. The difference is those are government programs whereas the Affordable Care Act is more privatized with the insurance companies being the direct financiers (which is why a public option in my mind would have been better and have led to more competition between insurance companies). Its hard to tell if those who are against the Affordable Care Act, also want to see Social Security go away? Better be careful what you wish for.
PP
Would really appreciate your source on this one. Abe's quote.
birchwood
I was referring to setting the precedent of requiring citizens to purchase a product or service. Social Security, etc, may require a payroll contribution for the whole but are you suggesting this is the same thing?
State of Alaska
Mr Dunker, then would that mean the State of Alaska's requirement that drivers purchase car insurance be unconstitutional as well?
Kiki
The Federal Government cannot, to date, require me to purchase personal car insurance though if precedent is set in this case it may well be the case. The U.S. Supreme Court is addressing the enumerated powers of Congress under the authority of Interstate Commerce. States may enact such requirements if said statutes do not conflict with the U.S. Constitution. Alaska cannot mandate Washington citizens to purchase car insurance.
Kiki
I might add, Alaska does not require me to purchase car insurance (liability) if I choose not to drive. Alaska may also grant it's citizens more rights than the U.S. Constitution so long as said rights do not go against the Constitution which is why there are many variances in civil unions, etc.
Mr Dunker
So if the State of Alaska required you to purchase health insurance, that would be acceptable to you because its not the Federal government requiring it? Also, everyone at some point in their life needs Dr care. People dont choose to get sick. So your analogy of not being required to purchase liability insurance if you choose not to drive would actually seem to validate mandating health insurance. But that aside, even though we have differing views, I appreciate the respectful exchange.
Kiki
I appreciate civil exchange myself. The premise for liability insurance is personal injury or property damage stemming from an accident I cause while licensed by the state for that activity. The insurance does not cover myself or my vehicle. I could choose full coverage. But I do not feel comfortable with the Federal Government mandating full coverage. Or the State for that matter.
My suspicions regarding Federal Government oversight and regulation is founded on personal experience regarding catastrophic illness and nothing since then has changed my opinion. I believe there are options available which have not been addressed because leadership (on all levels) has lost the statesmanship, vision and promise of a new nation that cannot seem to be replicated by the older version.
That is not to say I place it all on politicians. But I do place it all on politics.