I have two short articles in this week’s Christian Science Monitor. One, an info briefing on the states’ lawsuit against the PPACA, has just been posted online:
President Obama signed the Patient Protection and Affordable Care Act on March 23. Within minutes, 14 state attorneys general filed lawsuits in federal courts in Virginia and Florida challenging the constitutionality of the law’s “individual mandate,” which will require nearly every American to buy health insurance or face annual fines.
Although the individual mandate doesn’t kick in until 2014, legal challenges to the mandate have been met with some sympathy in court. As these cases move forward, it’s worth taking another look at the suits.
Just a few days ago, it seemed as though in the next few terms the Court would be facing down an unavoidable phalanx of hot-button issues: gay marriage, health care, affirmative action, illegal immigration, and abortion. Today, however, the phalanx may have lost a horseman: the inevitable big abortion case became, well, evitable–kind of.
Back in April, the Nebraska legislature passed a new law, LB 594, that required pregnant women seeking abortions to be screened for a litany of risk factors to determine whether the women would suffer from mental or physical problems following an abortion. In July’s Planned Parenthood v. Heineman, Judge Laurie Smith Camp of the U.S. District Court for the District of Nebraska found the bill to create “substantial, likely insurmountable, obstacles in the path of women seeking abortions in Nebraska,” and issued a temporary restraining order in enjoining the legislation from coming into effect.
Today, the AP reports that the Nebraska Attorney General has chosen not to appeal:
“It is evident from the judge’s ruling (to temporarily block the law from taking effect) that LB594 will ultimately be found unconstitutional,” she said. “Losing this case would require Nebraska taxpayers to foot the bill for Planned Parenthood’s legal fee.”
“We will not squander the state’s resources on a case that has very little probability of winning.”
While the district court’s TRO will now become a permanent injunction, a severability clause in LB 594 allows the rest of the legislation to stand.
Nevertheless, there remains separate bill, LB 1103, which provided for the headline-grabbing ban on abortions after 20 weeks of pregnancy–without regard to the woman’s health–on the theory that fetuses can feel pain at that gestational point. The provision, says the AP, “is scheduled to go into effect on Oct. 15, but a legal challenge is possible from Bellevue abortion doctor LeRoy Carhart.”
Yes, that’s the same Carhart from the partial-birth abortion cases of 2000 and 2007, in which the Court sided first for Carhart in striking down a Nebraska law, and then, with Justice Alito’s replacement of Justice O’Connor, sided against Carhart in upholding a virtually identical federal law.
If Carhart does bring suit, then the hot-button phalanx lives. The question then will be how the Roberts Court will dispose of these cases if docketed. Might we see a return of the 2006-07 Court, which stacked the docket with ideological blockbusters and pushed the issues rightward? Or will we see a continuation of the Court’s past two terms, in which it preserved its political capital for one major gain while finding compromises on issues too explosive to touch. Political factors may determine which Roberts Court we shall see: will the Court be supported by a Republican-controlled Congress? Will these cases come during the 2012 Presidential campaign or after the election?
CORRECTION: This post originally stated that the two abortion restrictions discussed were part of the same Nebraska bill. That was incorrect. The post has been edited accordingly. Thanks to my professor and mentor, Ken Jost of CQ Researcher, for calling my error to my attention.
John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.
Here’s Linda Greenhouse, the former NYT Supreme Court reporter, interviewed about themes very important here at F1@1F:
JD: In an article you wrote for The New York Times, you say that “the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.” In what instances have you observed the court straying too far from present social or political consensus?
There was a series of Supreme Court decisions in the 1990s that overturned acts of Congress on the ground that Congress didn’t have the constitutional authority to have passed those laws in the first place. I made a big deal about it because I just thought it was really fascinating. There was a pushback against that. Congress pushed back, and the political system pushed back. The court stopped doing it. They tended to be very technical decisions, but subgroups of the population were very interested. That maybe was an instance of the court overreaching, that you could call a Federalist revolution. Then, a lot of people cite Roe v. Wade as the court overreaching. That’s not my view in that instance. There was a huge debate going on about abortion at the time, and the court actually had plausible reasons to think that it was following public opinion in Roe.
JD: What was the difference in the political environment surrounding Roe v. Wade and that surrounding a case like Brown. v. Board of Education? What made people think that the court could have been overreaching in Roe, but not in Brown?
Well, of course there can be many reasons. One reason could be that equal protection, which is what Brown is based on, is hard wired into the Constitution, and it’s just a question of, did equal protection mean “separate but equal”? One could have disagreed with Brown, and of course many areas in the South took decades to come around to it, but you couldn’t appropriately argue that it wasn’t the business of the Supreme Court to decide the issue of the rights of black citizens. Of course, the Constitution doesn’t contain the word abortion. So, there’s always the argument that the court was out of line in doing anything about abortion, yay or nay. The Constitution doesn’t say anything about giving the court the right to step into that area. That’s not my personal view, but it certainly distinguishes the Roe controversy from Brown v. Board. [...]
JD: To what extent do you believe that the court has become politicized? How much does public opinion affect the way judges vote?
Well, Barry Friedman wrote a book that’s 682 pages on the subject, called The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. But Barry Friedman’s thesis, which I agree with, is not that the court wakes up in the morning, puts its finger in the wind and says, you know, “what’s blowing today?” but that over time, the court tends to situate itself in the mainstream of public opinion and it reflects public opinion, which makes sense, because the justices get on the court through the political process of the president nominating them and the Senate confirming them. And as a part of the government, the court is really limited to its power to persuade, its power to command the respect of the public, which it has succeeded in doing to a remarkable degree over the years. In social science polling, the court is always the most respected arm of government. The court really has been pretty successful in reflecting not necessarily the opinion of the moment, but the tenor of the time, and I think that’s not surprising.
JD: Do you agree with people who say that sometimes the court’s decisions are influenced by liberal media bias?
Well, no, the whole “Greenhouse Effect?” Properly understood, they are referring to me not as an individual but as sort of an embodiment of Eastern liberal media, namely The New York Times. No, I don’t think that’s the case, but it’s certainly true that over time, the court certainly cannot be completely at odds with the American public. I mean, that’s what happened in the Roosevelt court-packing crisis. I hear people speculate that if we were ever to pass a health care bill with a mandate that the court would declare it unconstitutional, but I would be completely shocked if that ever happened, because that would really be a return to the 1930s, where the court was standing in the way of major social legislation that the public had called for. So, I would be extremely surprised if that ever happened again. [F1@1F NOTE: My thoughts exactly.]
JD: In writing of the Supreme Court’s relationship with society, you say, the Supreme Court is often a follower: it ratifies or consolidates change, rather than propelling it, although in the midst of a heated debate about a big case, it can appear otherwise. What do you mean by this?
Well, I think I probably had Roe v. Wade in mind. Abortion reform had been going on for 15 years by the time the court decided Roe, so when people say that historically, the court started it, no, they didn’t. The court doesn’t start much. It can’t, really. Cases reach the court after years of debate. Just look at Proposition 8. It’s coming up ten years after Lawrence v. Texas and five years after the start of same sex marriages in San Francisco City Hall. So, things get to the court only because they have been working their way up through the rest of society, and it’s worth keeping that in mind.
As we have previously noted, the Court will issue opinions tomorrow. The next opinion day is Monday, January 25. After that, the Court is not scheduled to issue opinions until Tuesday, February 23. The month-long gap results from the break between the Court’s January and February sittings.
The Court could add an additional opinion date. That would have been extremely unlikely under Chief Justice Rehnquist. But in a variety of small ways, the Roberts Court has taken a more pragmatic approach that deviates from certain traditions.
Nonetheless, the Court is an institution that does rest on tradition, and it will have a strong institutional preference for sticking to its usual calendar. The Court is also well aware of the public interest in having the campaign finance case decided, as illustrated by the fact that it held oral argument in late summer, outside the usual argument calendar.
Next, should the Court strike down McCain-Feingold‘s restrictions on corporate campaign expenditures, expect liberal commentators to reveal doomsday visions of insurance companies emptying their coffers in the 2010 campaign on a multimedia effort to smear all incumbents supportive of health care reform as fascists, socialists, and communists.
That’s a vicious one-two punch from our Legislative and Judicial branches. But should that combination come to pass, expect the Executive Branch to stay cool, adjust to the circumstances, and move ahead. There will be neither war nor implosion.
The WaPo has a story this morning about the inevitable lawsuits challenging the constitutionality of the health care bill’s individual mandate. Over at Balkinization, Professor Mark Tushnet reminds his liberal colleagues, whose quotes in the WaPo piece discard the conservative arguments against the mandate, that the law is what five members of the Supreme Court declare it to be. In Tushnet’s words,
where the stakes are high enough and the political energy is available (to lawyers and judges), at any time the body of legal materials contains enough stuff to support a professionally respectable argument for any legal proposition. So too with the constitutional arguments against the individual mandate. [...]
[W]hat the law “is” is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.
Or, put another way, remember Bush v. Gore?
Indeed, some conservative and libertarian legal scholars and practitioners see the health care bill as the best opportunity to restore the “Constitution in Exile“–one eminently protective of private contracts and individual economic rights against government interference–since its banishment in 1937. A few such scholars were quoted in the WaPo piece. Since the fall, the Wall Street Journal has opened its op/ed pages to Constitution-in-Exilers who have attacked the health care legislation as patently unconstitutional.
These advocates are banking on the fact that the health care overhaul is so drastic of an expansion of the modern constitutional order–one in which the Commerce Clause protects nearly every economic regulation–as to compel at least five members of the Court to declare once and for all the intellectual bankruptcy of the country’s post-1937 jurisprudence.
Tushnet is right to warn his fellow liberals not to be so sure of the individual mandate’s constitutionality. And surely there will be members of the Court–Justice Thomas, for one–who will eagerly vote to condemn the mandate. But per my belief that the Roberts Court has been acutely responsive to the surrounding political climate–see my introductory post below–I do not believe a majority of the Roberts Court will want to take the side of the Tea Partiers and the Tenthers on health care.
Further, Congress’s votes in both chambers did not reflect the broad public support for health care reform. In Bush v. Gore, the Court’s five-member majority could rely on just about 50% of the population to support its Presidential preference. For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.