Quotes of the day

First, a presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.

Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology…

And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago…

How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That’s how we used to talk about the Chinese courts when I was living there. Now it’s how law professors are describing the Supreme Court of the John Roberts era.


The Supreme Court has not yet ruled against the individual mandate, and who knows whether it will. Yet this has not stopped commentators from making sweeping charges about the Court. Many commentators, for instance, are charging that the Roberts Court is “activist.” For some, “activist” is just a label for judges that make decisions they don’t like; one man’s “activist” is another’s constitutional paladin. For others, however, the label “activist” is used to describe a court that is particularly “active” in overturning precedent and invalidating laws, and thereby altering the course of the law. So, for instance, James Fallows claims the Court, and Justices Roberts and Alito in particular, “actively second-guess and re-do existing law” and Jeffrey Toobin charged “the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents.”

The problem with these characterizations of the court is that if by “judicial activism” one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period. As a recent NYT analysis showed, thus far the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors. Further, many of the Court’s most “activist” decisions, so-defined, have moved the law in a more liberal direction (see, e.g., Boumediene, Kennedy v.Louisiana) or were broadly supported First Amendment decisions (e.g. Stevens).


Clinton predicted that if the law is declared unconstitutional, Republicans will suffer a backlash when millions of Americans calculate what they have lost. Before the Affordable Care Act passed, two thirds of all the applications for bankruptcy were because of health-care emergencies, a consequence likely to return if health care inflation again rises precipitously.

Clinton drew laughter with anecdotes about individual mandates that go back to the founding of the nation. In 1797, when John Adams was president, he signed a bill that required all seamen to be covered by hospitalization insurance through their employer…

Before Mitt Romney as governor signed the individual mandate, Massachusetts had the highest health-care costs in America. Today, that state is seventh, because inflation in health-care costs in that state have been much lower than in the country as a whole. Why? The mandate prevents insurance companies from shifting their promotional costs to consumers, Clinton said.


If Democrats, in a fit of pique, delegitimize the court over an ObamaCare defeat, conflicts between future presidents and the court are likely to turn out differently. At the very least, future Supreme Courts will be less willing to confront a president head-on, while future presidents will be more willing to ignore or evade high court decisions they don’t like.

Yet Supreme Court decisions are the source of much of the liberal legal infrastructure for today’s society. So a weakened court might well mean major losses for liberalism in areas like abortion, birth control, criminal procedure and more.

And if, as seems increasingly possible, the next president is a Republican with a Republican Congress, the new administration will be in a stronger position to make sweeping changes without worrying so much about the courts. Might we revisit efforts to ban partial-birth abortion? Limit the rights of criminal defendants? Pass a new, tougher Patriot Act?


In a 2008 profile of Axelrod in the New Republic, Jason Zengerle quoted Ken Snyder, a Democratic consultant and Axelrod protege, on his mentor’s approach. “David felt there almost had to be a permission structure set up for certain white voters to consider a black candidate.” The “permission structure” relied heavily on “third-party authentication“ — endorsements from respected figures or institutions that the targeted voters admired…

What the conservative movement has done — with a big assist from Verrilli — is build a permission structure that would permit the Republican appointees to the Supreme Court to rule against the individual mandate. They had taken a legal campaign initially dismissed as a bitter and quixotic effort based on a radical and discredited reading of the commerce clause and given it sufficient third-party authentication to succeed. If the Supreme Court rules against the mandate, it will no longer be out on a ledge. It will be in lock step with the entire Republican Party, many polls, a number of judges, the impression the public has gotten from the media coverage and the outcome of the oral arguments.

And that’s what has changed from two years ago. When this campaign began, it was unthinkable that the Supreme Court would indulge it, even if some on the Supreme Court were sympathetic to its aims. “There is a less than 1 percent chance that the courts will invalidate the individual mandate,” Kerr said at the time. Today, it’s entirely thinkable that the Supreme Court will indulge it, and that means that the members of the Supreme Court, who care deeply about protecting their institution’s legitimacy, are free to rule in whichever direction they want. We’ll find out what direction that is on Thursday.


The post-New Deal consensus about the scope of federal power has broken down amid national, and global, concern over the welfare state’s cost and intrusiveness — a sea change of which the tea party is but one manifestation. Obamacare itself, which has consistently polled badly, fueled that movement.

Much has been made of the fact that Republicans had no objection, constitutional or otherwise, when the individual mandate first surfaced. But that was two decades ago. In today’s changed intellectual, fiscal and political environment, seemingly lapidary constitutional phrases such as “commerce . . . among the several states” can acquire fresh meaning, as they did for the New Deal and at other points in the past.

The brilliance of Obamacare’s opponents lies in spotting that historical opportunity and making the most of it. The legal professoriate, by contrast, reminds me of how William F. Buckley described his arch-conservative magazine in the 1950s: “It stands athwart history, yelling Stop.”


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