With the exception of Bush v. Gore, which in effect confirmed George W. Bush’s victory in the 2000 presidential election, it would be hard to think of another recent Supreme Court case that’s been the occasion of as much advance tugging and pulling from outside sources as the court’s anticipated ruling on the Patient Protection and Affordable Health Care Act, better known as Obamacare. The decision is expected before the justices quit for the summer in late June.
Even President Barack Obama lost his presidential cool and indulged in a burst of pre-emptive huffing and puffing aimed at activist judges who might be so bold as to undo his ambitious scheme for overhauling the nation’s health care system. In April the president said overturning a law enacted by “a democratically-elected Congress” would be “an unprecedented, extraordinary step.”
As critics were quick to point out, the court has taken precisely that unprecedented step many times since 1803, when Marbury v. Madison affirmed its constitutional right to review and, if necessary, strike down laws passed by democratically elected congresses. Obama wisely moderated his rhetoric next day.
Others didn’t. The New York Times, for one. Looking ahead, as Obama had, to a hypothetical overturning of the act, the newspaper claimed that “the court will mark itself as driven by politics” if Obamacare is overturned by “five Republican-appointed justices supporting the challenge led by 26 Republican governors.” The Times was hardly alone in milking this line.
I make no prediction about what the Supreme Court will do or why it will do it or what the vote will be. Similarly unpredictable is the decision’s impact on the Department of Health and Human Services mandate requiring health coverage for contraceptives, abortifacients and sterilizations and on the suits brought against it in May by 43 Catholic institutions including Our Sunday Visitor, 13 dioceses, the University of Notre Dame and The Catholic University of America. At present, I’m merely raising an obvious here-and-now question: To what end this torrent of before-the-fact indignation and anxiety? Aren’t Supreme Court justices supposed to be immune to external attempts to coax them or coerce them?
Well, yes. But justices are human, and hardly anyone imagines they possess a superhuman capacity for ignoring outside pressure. Individuals and interest groups who want the court to rule one way or another — on Obamacare or anything else — may well reason that at least there’s no harm trying.
This episode also underlines an easily overlooked matter with considerable bearing on the presidential campaign, whether Obama and Republican candidate Mitt Romney say so or not. Presidents nominate new justices to the Supreme Court when vacancies occur. And it’s entirely possible that whoever occupies the Oval Office in the next four years will get to do that one or more times.
Obama already has succeeded in placing two reliably liberal votes on the court in the persons of Sonia Sotomayor and Elena Kagan. There is not the shadow of a doubt that, presented with the opportunity, he will add a couple of more. Given the current lineup of the court (roughly, 4-4-1, with Anthony Kennedy the crucial swing vote), and supposing it’s Kennedy or one of the conservatives who leaves, that would put the outcome of those 5-4 decisions in the hands of the liberal bloc.
Romney is something of a question mark, but it’s reasonable to think his selections would be well to the right of Obama’s. With cases on the Defense of Marriage Act and same-sex marriage heading to the court and tests of state laws restricting abortion probably close behind, the difference could be huge.
Russell Shaw is an OSV contributing editor.