Published in POLITICO
If the Supreme Court rules on the constitutionality of health care reform next year, its decision will have a huge impact on the entire country — but it could also have a lasting impact on the reputation of the court itself.
Justices may be weighing this when they decide whether to rule on the law at the height of an election year, court experts say. They’re now under intense pressure from all sides to take one of the health reform cases and decide it quickly.
But concerns about the impact it would have on Supreme Court as an institution could steer them away from an election-year ruling.
“You could see every reason why the court would not want itself caught up with a legal issue that could be intimately related to the election,” said New York University law professor Barry Friedman, author of “The Will of the People,” a book about how public opinion shapes the high court.
There are plenty of questions the justices might be pondering — besides the obvious legal ones. Could a ruling against the health care law actually help President Barack Obama by giving him something to run against? Or, conversely, would upholding the law put the court in the Tea Party’s cross hairs? Would it be a waste of the court’s time, since Republicans might just scrap the law anyway if they sweep the 2012 elections?
And might it undermine the perception that the court is above politics if it rules right before the country heads to the polls?
It could be hard for the court to duck the issue, now that the Obama administration has asked it to overturn an 11th Circuit ruling striking down the individual mandate. But it’s not impossible, legal experts say. The justices could wait to take the case until other challenges to the Affordable Care Act have made their way through lower courts. Or they could say it’s too soon to rule on whether the mandate is constitutional because no one has yet paid the fine for lacking insurance.
One reason justices could shy away from taking the case now even if they’re tempted to strike down the law, explains Harvard Law School’s Noah Feldman, is that such a ruling could actually help Obama in his reelection bid.
“If you [strike down the ACA] before the election, you give Obama an issue to run against: He can run against the court,” Feldman said.
Louis Michael Seidman, a professor of constitutional law at Georgetown University, said the court might also wonder if it’s worth getting involved on a matter that the other two branches of government might make disappear if Republicans gain power in the election.
“If I were a conservative justice, one of the things that would be going through my mind is that this thing is likely to collapse under its own weight in any event,” Seidman said. “If one were an opponent of the Affordable Care Act, one might think it’s better to let it die on its own than for the court to use its political capital to kill it.”
But Friedman argued that justices take a longer view than a single election, and they are concerned with bigger issues than who will win the White House or whether a policy they dislike will stand.
Friedman believes the court is likely to take the case and rule before the election — but he also thinks Chief Justice John Roberts might want to avoid rushing into this case, since he believes Roberts tends to prefer making an impact through lower-profile cases.
“The chief justice seems extremely cautious and has a good nose for keeping the court out of trouble,” Friedman said. This sensitivity might even make Roberts wary of striking down the mandate, he said, “because he’s the one who’s most sensitive to the court’s institutional role.”
Randy Barnett, a professor of legal theory at Georgetown University Law Center, sees Roberts’s record very differently.
“This chief justice has not avoided coming out on a controversial side of a big opinion when he has to,” said Barnett, one of the lawyers representing the National Federation of Independent Businesses, a plaintiff in the 11th Circuit case the Obama administration is appealing.
“If this law were very, very popular, then [the Supreme Court] might have some institutional concern,” Barnett said. “But for a law that’s very unpopular among a broad portion of the American people … politics kind of drop out.”
A new Gallup poll suggests the court is vulnerable to public disapproval. Just 46 percent of respondents said they approve of the court, down 15 points since 2009. But Gallup’s findings also show the court is still the most highly regarded branch of government — 63 percent of Americans say they trust the Supreme Court a “great deal” or a “fair amount.”
Obama hardly has the high approval he might need to spark a popular backlash against the court. That’s a key difference between the potential health care ruling and a case that stands out in the history of politically charged Supreme Court decisions: a 1935 ruling that struck down a major New Deal law not long before Franklin Delano Roosevelt faced reelection.
Right after he won a second term, Roosevelt launched one of the boldest attacks on the court’s independence, calling for legislation in 1937 that would have allowed him to appoint several new Supreme Court justices. This became known as the “court-packing plan.”
Though this happened 74 years ago and the court was not restructured, Friedman said the episode still represents the danger that the court’s independence can be attacked. “Nobody forgot what happened in 1937,” he said. “They know they can be attacked, and they’re sensitive to it.”
He also argues that Bush v. Gore weighed on Sandra Day O’Connor in the years after the court ruled, though polling does not show that the institution paid any political price for a ruling that decided the outcome of the 2000 election.
In fact, Bush v. Gore is proof that the court does not worry about compromising its judicial independence, argues Kannon Shanmugam, a partner with Williams and Connolly who served as an assistant to the solicitor general in the George W. Bush administration and as a clerk to Associate Justice Antonin Scalia in the 1999-2000 term.
“Whenever the Supreme Court decides a controversial case, they always run the risk that that’s going to draw attention to the court, and the court’s an institution that generally doesn’t like to be in the public eye,” Shanmugam said. “But that doesn’t mean that they shirk it.”
The ruling in Bush v. Gore, he continued, “evinces that the court is not so cognizant of issues like that.”
But in at least one important instance in recent history, there was great debate about whether to take a hot-button case in an election year. The case was 1992’s Planned Parenthood v. Casey, which Planned Parenthood’s legal team expected the court would use to overturn Roe v. Wade.
In fact, Kathryn Kolbert, the lawyer who represented Planned Parenthood, said the group “rushed the court to accept the case because we wanted a decision before the election.”
Kolbert, who now directs Barnard College’s Athena Center for Leadership Studies, said that internal documents released after the case was decided showed there was “huge debate among people on both sides of this issue about the timing.” Then-Chief Justice William Rehnquist kept tabling the case until Justice John Paul Stevens threatened to take the unusual step of dissenting from the order to hold it.
In the end, the court surprised Planned Parenthood by finessing the issue, Kolbert said. “They came up with a new articulation of the law that preserved the hallmarks of Roe while permitting greater regulation” of abortion by the states, she said.
Though Kolbert expects the court will rule on the mandate in the ACA case, she said there’s always the chance that the justices might surprise all sides by finding a similar way to avoid becoming starring players in the election drama.
“That’s the beauty of the law,” she said. “There’s always ways of finding nuance.”