I suppose we should expect a few more months of this:
When the incoming Chief Justice John G. Roberts Jr. came before the Senate for confirmation seven years ago, President Reagan’s solicitor general gave him a warm endorsement as a “careful, modest” judge.
“He’s not a man on a mission,” Harvard Law professor Charles Fried testified, adding that Roberts was not likely “to embark on constitutional adventures.”
But two years ago, the Roberts-led Supreme Court struck down the federal and state laws that for a century had barred corporations and unions from pouring money into election campaigns.***
After the healthcare arguments, Fried was among those who worried aloud about the prospect of the Roberts court embarking on a new era of judicial activism.
If the court were to invalidate the healthcare law, “It would be more problematic than Bush v. Gore,” Fried said in an interview, referring to the case that decided the 2000 presidential race. “It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.”
Look- there is no way of knowing how the Court will eventually rule. None. But what is troubling to many is that it is even up in the air at all, considering the general consensus among our legal elites is that this a no-brainer and of course it is Constitutional (.pdf). Here’s the overwhelming opinion from everyone not wearing a tri-corner hat and a “Don’t Tread On Me” t-shirt with two pistols tucked into the waist band of their depends and a pocket Constitution in the bucket of their electric scooter:
When Congress passed legislation requiring nearly all Americans to obtain health insurance, Randy E. Barnett, a passionate libertarian who teaches law at Georgetown, argued that the bill was unconstitutional. Many of his colleagues, on both the left and the right, dismissed the idea as ridiculous — and still do.
But over the past two years, through his prolific writings, speaking engagements and television appearances, Professor Barnett has helped drive the question of the health care law’s constitutionality from the fringes of academia into the mainstream of American legal debate and right onto the agenda of the United States Supreme Court.
“He’s gotten an amazing amount of attention for an argument that he created out of whole cloth,” said one of his many critics, Douglas Laycock, a professor at the University of Virginia Law School. “Under existing case law this is a very easy case; this is obviously constitutional. I think he’s going to lose eight to one.”
Could the Court rule that it is Constitutional- of course they still could. But again, what is most troubling is that this is even in question. The implications of them over-ruling would be far and wide:
The thing is, as of the time the law was passed, *everyone* across the political spectrum thought this thing was constitutional. The Heritage Foundation started it, the D’s finished it, and the whole way down no one thought it ran afoul of the Constitution (save for people considered fringe at the time).
What this says is that Congress and the entire country were relying on the precedents SCOTUS set to pass the law—and they spent almost two years and untold legislative resources doing it. That’s the whole point of stare decisis, allowing for predictability with respect to what the law allows. Stare decisis is what makes sure the courts don’t act arbitrarily by constraining them to fit within precedent.
Acting in ignorance or with disregard for precedent (and precedent’s practical attendants, like reasonable beliefs in the public about what the law is) undermines rule of law, makes it impossible to pass laws confident of their legality, etc. It is, in a word, arbitrary. It’s the kind of thing they do in developing countries.
If SCOTUS ditches stare decisis here, sure their credibility will take a hit, but more importantly: we, as a polity and individuals, would have no reason to think we could pass any major regulatory legislation (unless, of course, we took the political commitments of the justices as our guide). SCOTUS would be potentially freezing the statutory law in place. What is Congress supposed to do with its time if everything it thought it knew about the law gets chucked out the window? How does it pass legislation? How does it change *existing* legislation? Are only Republican Congresses allowed to pass laws?
At any rate, it’s just funny listening to all the pearl-clutching from Fried and other “respectable” Republicans. Will the Court overturn it? In my more cynical moments, I say absolutely, by a 5-4 vote. In my more hopeful moments, I say of course not- it will be upheld 6-3. What will probably happen- anyone’s guess, but I think the best guess is that one or part will be struck down. They may split the baby and nuke Medicaid and keep the mandate.
Oh, and the answer to the question “If the law fails, what’s next” is that every single person who gets royally screwed, kicked out of their health insurance, etc., should be forcefully and repeatedly asked how they like their GOPcare/teabaggercare. Make the right wing own the mess. They broke it. They bought it. Make them own the misery they create.
*** Update ***
Read this, also too.