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 firstname.lastname@example.org; blog: www.dickpolman.blogspot.com.