We have argued before that the Supreme Court should strike down Obamacare. While the Constitution grants Congress the power to regulate commerce among the states, and to make all laws necessary and proper to execute that power, Obamacare’s command that all Americans purchase health insurance cannot be justified under either grant.
Perhaps we are wrong. Perhaps there are better arguments for the law’s constitutionality than those we have so far seen from its defenders. But some of those defenders now seem to be dispensing with such arguments altogether. Instead they are threatening dire consequences for the reputation of the Supreme Court and especially for Chief Justice John Roberts if he joins a majority of the justices to strike down the individual mandate.
Liberal legal pundit Jeffrey Rosen, for example, writes that a 5–4 decision to this effect would mean that Roberts had been an “irredeemable failure” in making the Court less divisive. The Court would be “resurrecting the pre–New Deal era of economic judicial activism with a vengeance,” thus returning us to “a time when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn’t favor. We’ve seen this script play out before, and it didn’t end well for the Court.”
Rosen surely knows, though he does not mention, that the plaintiffs have not asked for a single New Deal precedent of the Court — or any precedent of the Court, for that matter — to be overturned; nor does their prevailing logically compel the conclusion that any of those decisions were wrongly decided. Rosen also surely knows, though he does not mention, that almost all of the polls have found that what “a majority of the country” does not favor in this case is the individual mandate or a Court decision upholding it.
The implicit message of his article and similar ones is, however, surely true: If Chief Justice Roberts joins four other justices in striking down the mandate, liberal opinion will portray all five of them as conservative activists, partisans, throwbacks to 1905, etc., without great attention to such details as facts.
But it’s not clear why the justices should care. Liberal attacks on the conservative justices have not proven especially harmful in the court of public opinion. The Lopez decision of 1995, a reassertion of federalism, was greeted by the New York Times as a revival of the Articles of Confederation. Liberaldom treated Bush v. Gore as a kind of jurisprudential hate crime. Public confidence in the Court stayed steady, and liberals mostly moved on. In more recent years, it is true, public esteem for the Court has dipped, but it remains high and the drop seems attributable to the public’s general sourness with governmental institutions rather than to the success of liberal attacks.
If the Republican-appointed justices conclude that the individual mandate is unconstitutional and vote accordingly, they will have to put up with some law-review scorn — but all of them, even from time to time Justice Anthony Kennedy, have had to do that.
The four liberal justices appear very likely to uphold the mandate, a fact that somehow does not lead to their description as partisans. For the justices who are prepared to consider whether the mandate is unconstitutional, the path of duty is clear: They should uphold the Constitution as best they understand it, explain their reasoning as well as they can, and let their critics and supporters have at it.
We suspect that Chief Justice Roberts wants his legacy to consist of promoting fidelity to the rule of law, not a few months of liberal approbation followed by further blackmail attempts. He should call a strike, and give his would-be advisers the brush-off they deserve.