As long as we’re obsessing about the Supreme Court this morning, I might as well make another point that’s been on my mind lately: If the Supreme Court overturns Obamacare, it would be their third major anti-Democratic decision in the past dozen years. That’s capital-D Democratic. As in the political party.
When it comes to judicial activism, conservatives claim that we liberals have nothing to complain about. The Warren Court was famously activist in a liberal direction, after all, and we lefties thought that was just fine. But there’s a real difference here. The famous Warren Court decisions — ending school segregation, expanding the right to counsel, enforcing one-man-one vote, banning organized school prayer — were obviously decisions that conservatives didn’t like. But there was nothing in them that was especially damaging to the interests of the Republican Party.
But things are different this time around. In 2000, Bush v. Gore sent the Democratic Party’s candidate for president packing and installed George W. Bush in the Oval Office. In 2010, Citizens United opened the floodgates of corporate campaign money, a ruling that very plainly disfavored the Democratic Party on a purely operational basis. And if Obamacare is overturned, it will be a decision that kills off the Democratic Party’s biggest legislative achievement in decades.
The current Supreme Court is obviously more conservative than we liberals would like, but that’s what happens when the other guys win elections. To some extent, them’s the breaks. But to hand down decision after decision that very plainly opposes the agenda of one party over another is quite another. If there’s an argument to be made that the court is endangering its legitimacy, this is it. It’s not just that overturning Obamacare would be a prodigious repudiation of major legislation based on a very small and questionable point of constitutional law, it’s that it would hammer home the point that this court just doesn’t like the Democratic Party much. That’s not something that either Democrats or Republicans really ought to be comfortable with.