The Roosevelt Rubicon
Any invocations of, say, Citizens United in fear (or support) of the notion that the Roberts Court will not hesitate to strike down the law are overheated. We may expect the conservative bloc and Kennedy to chart rightward on conservative-libertarian issues, but as long as the Democrats hold at least one of the elected branches, the Court will invalidate neither landmark New Deal and Great Society legislation nor core components of the Obama agenda.
I cast the same suspicion over arguments citing Bush v. Gore as historical, if not legal, precedent for the Court’s capacity for rash, political meddling. Challenges to the PPACA will simply lack the blinding immediacy of a Presidential election left unresolved a month before Inauguration Day.
Finally, all of this hand-wringing may be for naught: I think the circuit courts will uniformly uphold the law’s constitutionality against attacks, and without a circuit split, I doubt the Court will even grant certiorari. And if there is a circuit split and the Court does hear the case, then I think we’re likely to see a near-unanimous upholding of the law.
In contrast, the Court will more likely reserve its blockbuster 5-4 decision to affirm or reverse whatever the Ninth Circuit will hold on the gay marriage case, an issue of grave importance to movement conservatives without the imprimatur of historical inviolability implicitly grandfathered into the PPACA from its LBJ- and FDR-era ancestors.