How should the Supreme Court decide regarding the constitutionality of Obamacare?
I have no idea. But even if I did, my opinion wouldn’t be worth much. After all, I’m a presidency scholar and this is a blog about presidential power, broadly defined. But I’m confident that I understand how they will decide the case – and it’s not likely to have much to do with the wording of the Constitution, or related case law for that matter.
For those of you living under a rock, the Supreme Court has just concluded the third and final day of hearings regarding the constitutionality of the Patient Protection and Affordable Care Act – more popularly known as Obamacare – the controversial health care reform legislation passed by a Democratically-controlled Congress and signed into law by Obama in March, 2010. On Monday, the Court’s deliberations centered on whether the suit against Obamacare brought on behalf of attorney-generals and governors from 26 states was justiciable at this time. (The key issue here is whether the fine for not buying health insurance as mandated under Obamacare is a “tax” or a penalty. If the former, an argument can be made that the case cannot yet be heard, since no one has actually paid that tax penalty, and won’t until 2014 at the earliest. However, neither the law’s proponents nor opponents want to delay a Supreme Court decision under this reasoning, and the justices seemed skeptical that the case should not be heard.) Yesterday the Court heard arguments regarding the constitutionality of the individual mandate – the provision in the law that says everyone must have health insurance, or pay a financial penalty. Today’s hearing centered on the issue of severability – whether all of Obamacare must fall if the mandate is found unconstitutional, and whether its proposed Medicaid expansion violates the federal-state partnership.
In listening to these hearings, and reading the abundant commentary, it becomes quite clear that the Constitution or related case law isn’t going to be the determining factors in whether a majority of the Court finds Obamacare constitutional or not. To be certain, when rendering their verdict, the justices will undoubtedly reference the Constitution as well as previous court cases such as Gonzales v. Raich and Wickard v. Filburn and U.S. v. Comstock. That is, they will ground their opinion explicitly in the meanings they attach to constitutional phrases, such as “necessary and proper” and “interstate commerce.” And they will buttress their interpretation of these ambiguous phrases by citing these and other court cases.
But if the issues were as clear cut as both opponents and supporters of Obamacare would have us believe, the case probably wouldn’t be before the Supreme Court today. In truth, as if often the situation with controversial legal cases, there are merits on both sides of the argument. That’s why the 11th Circuit Court of Appeals (which voted 2-1 to overturn the mandate) and three district federal courts (two of which upheld Obamacare while a third did not) rendered different and not wholly reconcilable legal opinions on the matter. (And I’m sure I’m missing other court opinions on the matter, but you get my point – judges and other legal experts are divided!)
If a reading of the Constitution and legal precedent is not decisive, then how will the nine Supreme Court justices go about deciding the case? By relying on their own political preferences and attitudes against the backdrop of public opinion. And, as a political institution, that’s how the Court should arrive at this decision. Whenever I make this argument, I understand that the legal purists among you recoil in horror, in the belief that politics should play no role in Supreme Court proceedings. Instead, you want the justices to behave like priests in robes, ruling ex cathedra from their legal temple without concern for partisanship or personal preference.
Dream on teen queen! That view is wholly unrealistic and not even desirable. For starters, justices are selected through an openly partisan process based in part on their political views; studies show that Democratic presidents overwhelmingly nominate Democratic judges, and Republicans opt for Republican ones. They do so, presumably, in the belief that judges who share their partisan affiliation will vote in the “correct” way. (That doesn’t mean they always get it right, of course! See David Souter.) Moreover, because the Court’s power rests primarily on the perceived legitimacy of its rulings, it can’t help but pay attention to public opinion. This is not to say the Court merely reads the latest polls and rules accordingly. But it does care about prevailing public sentiments, and most studies suggest that Supreme Court rulings and public opinion are rarely too far out of synch. This should not surprise us – remember, justices come of age, politically speaking, under the same circumstances that shape the political views of many of their generational cohort. For all these factors, then, we shouldn’t be surprised that when trying to parse the meaning of ambiguous constitutional phrases, such as “necessary and proper” or “interstate commerce” as applied to complex and novel issues like health care spending and insurance mandates that justices will fall back on their own broad ideological leanings. How else can they be expected to reach a verdict?
Consider one of the key issues at the heart of this case: whether Obamacare creates a form of commerce and then forces individuals to buy a product, or whether it simply regulates a health care market in which everyone will, sooner or later, participate. Where one comes down on this, I suspect, turns in large part on one’s broader ideological views regarding the role of government in the economy and in one’s private life.
So, if I am right, what does this suggest regarding how the Court will rule? I’ll let others peer into the tea leaves of the justices’ questioning, or parse the implications of previous court rulings. For me, the best evidence is the previous lower court rulings on this case. If I’m counting correctly, with two exceptions every federal justice appointed by a Republican president has ruled against some aspect of Obamacare, while – with one exception – every justice appointed by a Democratic president has voted in its favor. This follows on the heels of the congressional vote that saw every Republican vote against the health care bill. Why should this change in the Supreme Court? I don’t think it will. My guess is the four Democratically-nominated justices – Breyer, Ginsburg, Sotomayor and Kagan – will vote to uphold Obamacare. The Republican-nominated ones – Scalia, Kennedy, Thomas, Alito and Roberts will vote against the mandate, although I suspect at least some of them will allow the rest of the law to remain in place even without a mandate. If I am wrong about any of these votes, it is probably Kennedy’s – his questions on Day 2 seemed to suggest he was willing to accept the government’s argument that health care is a distinctly different type of commerce, one in which an individual’s decision not to buy insurance clearly impacts the financial standing of the insurance holders. I should be clear – I base this prediction not on any deep knowledge of the relevant constitutional law, or after reading the transcripts or listening to the audio of the oral arguments. So don’t bet the retirement fund on what I write.
What if I am correct and the Court rules against the mandate by a 5-4 vote? Dahlia Lithwick argues at Slate.com that if a closely divided Court does rule in such a blatantly partisan manner, it risks further undermining its legitimacy which was already damaged due to its decisions in Bush v. Gore and more recently with the Citizens United case. Lithwick notes that “The court likes to pretend it’s completely above public opinion, inured to the momentary zigs and zags of the polls. But most of us know that nothing could be further from the truth.” Citing a Bloomberg News national poll showing that 75 percent of Americans expect the Supreme Court’s decision regarding Obamacare to be influenced by the justices’ personal politics, Lithwick warns that “To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would—simply put—prove that 75 percent correct, and erode further the public esteem for the court.”
The problem with Lithwick’s reasoning is that polling consistently shows that a plurality of Americans opposes Obamacare. To be sure, some of that opposition is rooted in the belief among liberals that the legislation doesn’t go far enough, and the degree of opposition depends in part on survey question wording. But it is safe to say that at no point since the legislation passed Congress has it received majority support. Much of that animosity centers on the individual mandate whose coercive nature – while perhaps economically necessary to make Obamacare feasible – cuts against the grain of many Americans’ deep-seated cultural aversion to what they perceive as government infringement on individual freedom. So it’s not clear to me that a closely-divided 5-4 decision against Obamacare will do much to impact public opinion toward the Court.
Keep in mind that public approval of the Court has declined a bit recently, but that decline is due to increasing dissatisfaction – but for different reasons – from liberals and conservatives.
About a third of Democrats generally feel the court is too conservative, while half of Republicans hold the opposite view. Independents come down in between although a slight plurality think the court is too liberal as opposed to too conservative. Most independents, however, think the Court’s ideology is about right.
Given this preexisting partisan divide, it seems that barring a unanimous decision, how the Court rules regarding Obamacare is likely to be viewed by members of one party as primarily a partisan-driven decision. Those in the other party will view it as correctly decided. However, it is certainly plausible that many independents who are not sure where to come down on the issue will back the court, no matter what it decides. Put another way, when it comes to Obamacare, at least some of the public may be closely divided, but not necessarily deeply divided.
Looking ahead, the Court is likely to render its decision sometime this summer, near the end of its current session. That will be just as the nominating process is winding down (I think!) but before the general election heats up. No matter how the Court rules, Obamacare is likely to be an important issue in the presidential election, just as it was in the 2010 midterms. But it’s hard to see how the Court’s verdict can make an already divisive issue even more polarizing.