Obamacare and the Fate of the Supreme Court

| Sun Apr. 1, 2012 11:37 PM EDT

Jonathan Cohn says the Supreme Court itself was on trial last week:

Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act. Now something else is at stake, too: The legitimacy of the Supreme Court.

....The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance....Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the Preisdent didn’t use perfectly constitutional language to describe it.

There are two ways to look at this. The first is through the lens of what it would actually mean to overturn Obamacare. On this score, Jonathan is right: it would be unprecedented. The Supreme Court has handed down plenty of big decisions before, but very, very rarely has it overturned a major piece of federal legislation. Not since the mid 30s, in fact. What's more, it would be overturning this legislation — a consummately political compromise forged in a consummately political area of public policy — based on a distinction that I think even most of Obamacare's critics would acknowledge is a very fine point of constitutional law. And that's not all. It would be overturning the law on a party-line 5-4 vote, and it would be doing so in the wake of oral arguments in which several of the justices made arguments so transparently political that it felt more like we were listening in on the Senate cloakroom than the chambers of the Supreme Court.

So yes: in terms of its actual impact, overturning Obamacare would be a very big deal indeed, and among a large chunk of the chattering classes it would certainly lead to a more jaundiced view of the modern Supreme Court as a nakedly political body.

But there's also a second lens to look at this through: the lens of public opinion. And although poll results on this are a little tricky to parse, there's no question that Obamacare is not much of a barnburner among the general public and isn't getting more popular over time. Even a generous reading of the survey data suggests that only about half the country likes Obamacare, and even among that half support is fairly lukewarm. When the Supreme Court started overturning New Deal legislation in the 30s, it ran into a buzzsaw of public condemnation. If it overturned Obamacare, most of the public probably wouldn't care very much.

So no: in terms of the public's view of the court, overturning Obamacare probably wouldn't have a big impact at all.

So which matters more? The general public's view? Or the view of a small but dedicated segment of elite opinion? In the short term, the general public probably matters more. In the longer term, probably elite opinion. Obviously we won't get a reprise of FDR's disastrous court-packing scheme, but overturning Obamacare could end up mobilizing movement liberalism in the same way that the Warren Court mobilized movement conservatism four decades ago. The nomination of Supreme Court justices is already an intense partisan battleground, and getting more intense all the time. Overturning Obamacare would raise the stakes even higher.

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