BULLETIN: President Obama said on Monday about the Supreme Court’s review of his federal health care law, according to a Washington Post article: “I just want to remind conservative commentators that for years what we have heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.” He added, “Well, this has been a good example. I am pretty confident this court will recognize that and not take that step.”
Days after the Supreme Court wrapped up an extraordinary three days of oral arguments over the federal health care law, some debate about the possible outcome already is getting strident. Against this backdrop, a scholar is urging a more nuanced understanding of why justices rule the way they do.
“A split court striking down the [health care] act will be declaring itself virtually unfettered by the law,” declared the New York Times editorial board over the weekend. In Slate, election law expert Rick Hasen wrote that “If it overturns Obamacare, the Supreme Court will have revealed its radical nature,” and its legitimacy could suffer.
“No doubt the Justices will ignore this transparent attempt at political intimidation,” the Wall Street Journal editorial board asserted on Sunday, addressing critics who are preparing a “judicial activism” attack if the court overturns President Obama’s health care reform.
It’s not just Democrats who are sounding alarms about the Supreme Court. Harvard Law Professor Charles Fried, a U.S. solicitor general under President Reagan, “was among those who worried aloud about the prospect of the [Chief Justice John] Roberts court embarking on a new era of judicial activism,” a Los Angeles Times article said.
With a number of analysts poised to bitterly attack the court, William Galston, a senior fellow at the Brookings Institution, talked in a New Republic commentary about ratcheting down the rhetoric and trying to understand better the ways that justices approach decisions. His essay was entitled, “Why the Supreme Court Justices Won’t Be Crudely Political When They Rule on Obamacare.”
Galston, a former policy advisor to President Clinton, wrote, “[A]s commentators consider what kind of decision the Court will hand down in June, they have been increasingly tempted to apply a simple ‘it’s all politics’ template: Liberal justices will favor the individual mandate, conservatives will oppose it, case closed. But that’s hardly ever the right way to look at the Court, and it’s certainly wrong now.”
Here are some of Galston’s themes: “[T]he general assumptions that individual justices bring to particular cases are typically jurisprudential rather than straightforwardly political;” “Second, there’s no single model of conservative jurisprudence—or of liberal jurisprudence, for that matter;” and “Third, justices have different dominant concerns.”
Galston also suggested that many justices take seriously into account how decisions influence the standing of the court. He summed up:
“None of this is to say that the Court won’t find a way to invalidate the controversial core of the [health care law]. (I’d be stunned if they swept the entire law aside, however.) But it is to say that the path to overturning the law is more winding than a simple count of liberal and conservative justices would suggest. And it’s very likely that the Justices—and the Chief Justice in particular—will be tempted to place their decision somewhere in the middle of that path.”
In the Richmond Times-Dispatch, author Eugene Hickok wrote a commentary entitled, “Partisan chattering undermines judiciary.”