Over the past few days, we've seen a hard push back from the
right against the notion that a ruling by the Supreme Court overturning the Affordable Care Act would severely damage the court's legitimacy. Indeed, they say, it is that very insinuation from the left that is problematic -- it would have the Court bow before a pressure campaign in opposition to what they think is the correct constitutional ruling. By definition, any consideration of these "legitimacy" concerns is inherently illegitimate -- as Ilya Somin puts it
, it would have the Court "engage in genuinely political decision-making in order to avoid the mere appearance of it."
But I think this outlook doesn't really account for the argument the left is making and how they think -- not without justification -- that an anti-ACA ruling would be purely the result of politics, not law. From a liberal vantage point, the reason it is so hard to take the anti-ACA argument seriously as a matter of principle is simple: The structure of the ACA was originally a Republican innovation, the GOP's answer to Hillarycare, most associated with Mitt Romney. At that point in time, its constitutionality was not remotely controversial. The only things that have changed from now until then are (a) it became a Democratic plan rather than a Republican plan and (b) Republicans have staged a multi-year temper tantrum declaring it (much like everything else the Obama administration does) as a reincarnation of the Khrushchev administration. Given that, it is a very plausible belief that those factors (that it is an identifiably Democratic plan, and that Republicans have thrown a massive hissy fit about it) are the key variables in transitioning the anti-mandate argument from "off the wall" to "on the wall".
Consequently, in making the legitimacy arguments, liberals are trying to have a debiasing effect -- in essence, telling the Court that "were this not a flagship liberal law bitterly opposed by Republicans, you would not find this even remotely controversial. To the extent that you think this is even a live issue, it is likely a result of the underlying political
currents, not legal argumentation." To be sure, I'm not arguing that someone like Randy Barnett only thinks the ACA is unconstitutional because its a high-profile Democratic agenda item which Republicans oppose. I am
saying that were it for not those things, Randy Barnett would be another Richard Epstein -- a very smart guy whose opinions on the Constitution rarely enter the same time zone as mainstream legal practice. Randy Barnett's opinions are genuine, but they're only mainstream because he's riding a wave of Republican fury which is entirely political.
To buttress this point, imagine an alternative history.
It's early fall of 2008. The McCain campaign is floundering, and the selection of Sarah Palin as VP is widely seen as a disaster. Privately, Republicans have already written off the 2008 election. Moreover, while Democrats already control the House and Senate, it looks like they will entrench those gains even more on Obama's coattails. At this point, the order of the day is damage control.
Congressional Republicans confer. They know that one important Democratic policy priority is universal health care. With a huge mandate and swollen majorities, Republicans are worried that Democrats will be able to push forward the plan of their choice -- government-run, single payer health care. In addition to ideological opposition, Republicans are worried that this will give Democrats ownership over yet another flagship governmental program.
So they decide to get out in front of the issue. Congressional Republicans decide to put forward their own plan, modeled on Romneycare, with an individual mandate to buy private health insurance. Democratic leaders are surprised and taken aback, but are willing to negotiate. After all, the plan isn't that different from that put forward by the Obama campaign. More to the point, many Democrats have bitter memories of the 1990s health care fight, and do not care to die on the same hill twice in one go around. With a slumping economy, many Democrats would rather Obama be able to focus his political capital on stimulus and other job-creating measures, and don't want him to get bogged down in what could be an endless and resource-draining health care fight.
Of course, plenty of Democrats want to hold out for single-payer, and plenty of Republicans are opposed to any further government involvement in health care at all. Still, a moderate middle position manages to gain a working majority. And so, with minor tweaks, a law substantially similar to the ACA passes Congress with bipartisan support (albeit with opposition on both flanks).
If the ACA had been passed this way -- not with universal acclaim, but also not with partisan acrimony, and not associated as the main accomplishment of a politician Republicans had sworn to destroy, does the ACA get struck down? No. Does it come close
to being struck down? No again. Indeed, I daresay it would not have even reached the Supreme Court. Of course some would still make arguments that the ACA was unconstitutional, but their views would be relegated to obscure corners of academia and libertarian think tanks (I don't mean this as an insult -- I sit in an obscure corner of academia, after all). In the courts and in the mainstream, the mandate would be viewed the same way it was viewed in the 1990s -- an easy case, raising no particularly controversial points of commerce clause jurisprudence and not capturing either the public or legal imagination.
And so we come back to my key thesis -- this case is only a "serious" case because of politics. Conservative Justices who are thinking about striking down the law should be rightfully made aware of the possibility, if not the likelihood, that their beliefs about the constitutionality of the ACA are being influenced in large part by these underlying political currents, and they should think quite critically about the degree to which their intuition that the law is unconstitutional is purely a "legal" one, or is subtly, unconsciously influenced by their surrounding political milieu. And the law is struck down, given the causal story I'm putting forward, I think liberals will be quite justified in believing that the decision is political -- not in the sense that conservative justices are self-consciously serving the interests of the GOP, but in the sense that the understanding of the constitution's requirements shifted almost entirely due to changes in substantive political positions, rather than "principled" beliefs about the scope of the commerce clause.
Now, I'm talking a lot about debiasing here -- this idea that we should make conservative Justices aware of the possibility, if not the likelihood, that they would not be seriously entertaining striking down this law were it not for the underlying political
flow of the issue. Which of course raises the question -- shouldn't liberal Justices ask themselves the same question? And the answer is: yes, of course. But it's also relatively easily answered -- liberal judges tend to have an expansive view of commerce clause powers across the board. They aren't any more likely to strike down "conservative" laws which allegedly exceed commerce clause boundaries (see Raich
). Had Republicans won the day in the 1990s and gotten their health care proposal passed, it would not have gotten any negative votes from the liberal justices. There might be other cases where liberal justices have to be more alert to the potential of political bias, but this doesn't seem like one of them.
Finally, with regard to the "actual" legitimizing or delegitimizing impact of the Court's decision. I have no idea what the reaction of the public will be to an anti-ACA ruling. It is true that polls demonstrate that most Americans dislike the ACA and think it's unconstitutional (though, of course, most Americans aren't trained lawyers and have no idea what makes something constitutional or not). On the other hand, most polls also demonstrate that most Americans like the individual provisions of the ACA. More to the point, public opinion is a fickle thing. It's been pushed to the right on this issue by loud and uncompromising conservative declarations that the ACA is a new Marxism. Paired against tepid defenses from the left, the right's greater passion gives the impression that they have the better of the argument.
An anti-ACA opinion will undoubtedly cause an explosion of anger from the left, and it will be interesting to see how the public reacts to that. If there is one thing that has been demonstrated over the past few years, it's that if a large group of people can be mad enough and loud enough for long enough, they can do a surprisingly good job of rallying the center. It's part of the reason why we're seeing such stark political polarization, and I don't think it's a good thing, but it's also a spiral I'm not sure we can escape from.