April 24 2012
Some Bad News For The Constitutional-Law-Professor-In-Chief?
Bad news for President Obama: Chuck Lane, a columnist at the liberal Washington Post, says that the prestige of the Supreme Court won’t be harmed by a split decision on Obamacare.
Since the oral arguments on Obamacare, however, some who support the law are pining hopes on Chief Justice John Roberts’ bringing the Court together to uphold the law rather than risk the Court’s prestige by taking the bolder course.
If Lane is right, the justices don’t have to worry about this (and, indeed, if they can’t rule on their interpretation of the law, regardless of other concerns, there is really no need to have a high court).
More bad news for the president: His charge that overturning Obamacare would be the dread “judicial activism” doesn’t hold water, and more and more people are beginning to recognize this.
David B. Rivkin and Lee A. Casey, former Justice Department lawyers who represented the 26 states that brought the issue of Obamacare to the Supreme Court, give a very clear explanation of why a ruling against the law would not be judicial activism in today’s Wall Street Journal:
"Judicial activism" is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising "will instead of judgment," in Alexander Hamilton's phrase.
Measuring a federal statute like ObamaCare against the Constitution and finding it wanting is not judicial activism. This, as Chief Justice John Marshall noted in the early (1803) and much-quoted Marbury v. Madison case, "is of the very essence of judicial duty."
This duty is not properly limited, as ObamaCare's increasingly desperate supporters claim, to judicial enforcement of the Bill of Rights and other affirmative prohibitions on congressional power. The Constitution must be interpreted and applied as a whole, and its basic architecture—in particular the limitations inherent in the enumerated nature of Congress's powers—is just as critical to the defense of individual liberty as are any of the other rights it guarantees. …
As the Supreme Court has consistently ruled in the past, the Constitution gives Congress only limited and enumerated powers. However vexing a particular problem may be, Congress can address it using only those powers. If its preferred solution requires the exercise of a power it was denied, such as a general police power, then Congress must think again. If, as in this case, Congress persists in adopting legislation that goes beyond its constitutional authority, the courts must invalidate it. That is not judicial activism. It is the fulfillment of the judiciary's constitutional duty.
Why, in Lane’s opinion, would the Court's luster survive an unpopular, split ruling?
As Washington University political science professor James L. Gibson writes, public confidence in the court is “obdurate.” Decades worth of data show that it does not ebb and flow with the short-term popularity of its decisions, much less with the size of a court majority.
Rather, the justices are esteemed because of their perceived expertise, the relative impartiality of their deliberations (compared to the political branches) and because the court symbolizes “the rule of law.”
But what if the court seems to split 5 to 4 along partisan lines, as some predict for the health-care case? Even that would not erode its standing, as long as most people either agree with the outcome or generally see the court as final arbiter even when they disagree with it. Usually, Gibson argues, a majority does indeed hold at least one of those views. Though the current court leans a bit right, it produces enough “liberal” results — 42 percent of the time in its 2010-2011 term, according to Gibson — to preserve a reputation for fairness.
The public still esteemed the court after five GOP-appointed conservative justices all but handed the presidency to George W. Bush in 2000 — contrary to many legal academics’ predictions that the decision was legally flawed and therefore a partisan blot on the court.
However the justices rule on health care, and however they split, there will be a political storm. But the court will probably weather it.
My guess is that, if the law is upheld, disappointed conservatives will shrug and renew the fight to repeal it in Congress.
But if the law is overturned, as increasingly seems possible, may I predict that outraged liberals will attack the legitimacy of the Court?