By Daniel Mark ’03
In the run-up to oral arguments at the Supreme Court over Obamacare, the Washington Times carried an article under the headline, “Dem-appointed justices will move in lockstep; GOP-appointed justices look to Constitution.” The cynical view represented by the headline is that the liberal justices would vote to uphold Obamacare based on their policy preferences whereas the conservative justices would vote up or down depending on what they believed the Constitution requires. While partisans of the two camps surely would not agree on this interpretation of the situation, there was widespread consensus before the Court heard the case that the left wing of the Court would support Obamacare while the votes of at least some of the conservative or right-leaning justices were up for grabs. Indeed, hidden beneath the provocative headline in the Washington Times was the core of a much more interesting observation.
There are two ways in which conservatism, in its contemporary shape, typically expresses itself in judicial decision-making. On one hand, there is strict constructionism, which points toward interpreting the Constitution narrowly. Taking such a view, a justice would have a more limited view of the powers conferred on Congress by the Commerce Clause and would, accordingly, be more likely to oppose at least the individual mandate. On the other hand, there is judicial restraint, which counsels deference to the other branches of government, particularly in the interpretation of their own powers. Exercising judicial restraint would make a justice more likely to vote in favor of Obamacare, respecting Congress’s judgment in the matter. Therefore, whether a right-wing justice votes to uphold or strike down the new healthcare law could depend on which strand of modern conservative judicial philosophy prevails.
In contrast, the liberal justices do not quite face the same dilemma. A commitment to loose construction of the Constitution would argue for upholding Obamacare, in keeping with an expansive view of the Congress’s commerce power. Furthermore, while a tendency toward judicial activism would not encourage a justice to uphold Obamacare, neither would it move him to strike it down. To be a judicial activist does not mean to take every opportunity to strike down a law; it just means to be more inclined to do so in the face of reasons that others find insufficient. No one suggests that activist judges strike down laws just for the sake of striking them down, only that they do so more freely than they should. That is to say, judicial activism in no way requires the invalidation of laws. It merely permits such more liberally than not. (To be sure, that is no defense of judicial activism.) The result is that there is no tension between the two strands of modern liberal judicial philosophy in this case. Loose construction argues for upholding the law, and judicial activism does not stand in the way.
If it is true that conservative (or at least not-conventionally-liberal) justices are pulled in opposite directions in this case while the liberal justices are not, then the prospects for Obamacare are rather good, the law needing only one of the conservative justices to exercise judicial restraint or even to find a warrant for Obamacare within the purview of the commerce power in order to be upheld. Whatever the reason, the conventional wisdom before oral arguments was that the Court would uphold the law. But then something remarkable happened. During oral arguments, several of the liberal justices defied expectations by appearing to be skeptical of the Obamacare legislation. Though what occurs during oral arguments is no guarantee of any particular outcome, the mainstream media experienced considerable consternation. What explains this unexpected turn of events?
Although this theory is based on no more than an intuitive sense of what drove some of the justices’ comments and questions, it seems that the commentators trying to anticipate the Court’s disposition overlooked an important factor: the justices’ concern for their own institutional prerogatives—that is, their own power. Judges, of course, are supposed to render decisions in conformance with the Constitution. On the cynical view, they sometimes relegate constitutional considerations to a secondary status behind politics. This is why critics accuse judges of sometimes voting based on their policy preferences instead of voting based on the Constitution. But even if judges place their politics ahead of the law, there is something else the judges guard even more dearly than their preferred policy outcomes: their power as judges. And this can be true for judges on the right and the left.
The key constitutional argument against Obamacare is that, under a reading of the Commerce Clause that would permit the individual mandate, there would no longer be any ground for principled constitutional limits on the commerce power of Congress. In other words, there would be no judicially enforceable limits. Thus, however much the liberal justices might endorse Obamacare as a matter of policy, they know that if they say yes to Congress in this instance, they can never say no again (at least with respect to the commerce power). Faced with this choice, even liberal justices might shrink from effectively granting Congress a blank check to legislate pursuant to the Commerce Clause. That is, although the liberal justices might be expected to jealously protect this landmark achievement of their own side, they might ultimately choose to protect their own power even more jealously. Admittedly, the restraints on Congress in this area are already quite thin. But Obamacare represents, at least to some minds, the crossing of an important line that has never been crossed before. If that view turns out to be persuasive, the justices might strike down the individual mandate and remind Congress that the Supreme Court, at least in its own eyes, still has the final say on the limits of Congress’s power. Perhaps this explains why, contrary to expectations, the liberal justices seemed somewhat hostile to the government’s case. Perhaps their votes are in play, too.
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