Dan emailed me several days ago asking whether I thought I should write a preshow (my word, not his) post about next week’s marathon Supreme Court oral arguments on the constitutionality of Obamacare, a.k.a., the Affordable Care Act. Six hours of argument, two each day, Monday through Wednesday, in which the Court will hear argument, first, on whether the courts even have “jurisdiction” (the legal authority) to even consider the challenges to the Act’s constitutionality before the challenged provisions of the Act have gone into effect, and, then, on the challenges to separate parts of the Act by various challengers who will be directly affected by the respective provision.
It promises to be a long three days. And by the time Dan emailed me, I already was sick of reading previews. I wrote back to Dan:
I don’t think there’s anything to say, really, at this point. There’ve been a zillion articles/commentaries about it within the last week or so, but they don’t really say anything. Mostly they just kind of speculate about how Roberts, Scalia and Kennedy might vote, based on things like what Scalia wrote in a concurring opinion in a Commerce Clause case a few years ago (Scalia expressed an “expansive” view of Congress’s Commerce Clause powers), and how Roberts wants to be remembered. It’s obligatory writing for people like Adam Liptak, the NYT Supreme Court correspondent, but pretty pointless, really.
But two articles published on Thursday, one by former (longtime) New York Times Supreme Court correspondent Linda Greenhouse, who in retirement writes a periodic commentary column in the Times, and Slate Supreme Court and general-legal-issues writer Dahlia Lithwick, are, I think, worth reading.
Greenhouse’s is titled “Never Before,” and the thrust of her article is that those two words—“never before”—are the sum and the (non)legal substance of the challengers’ arguments. “Unprecedented,” she notes, “is a description, not an analysis.” Or a legal argument. It is instead merely a political argument. And transparently so, which is why she predicts that the Court will uphold the statute, by a comfortable margin.
Well, actually, she predicts that the Court will uphold the statute by a comfortable margin because, well, for all the incessant hype, this is not, under extensive and pretty darn clear Supreme Court precedent relevant to each of the separate stated constitutional grounds argued, a close case at all—and because John Roberts cares a lot about how the Court is perceived during his tenure as its chief.
Or, more accurately, at least in my opinion, because under Supreme Court precedent this is not a close case and this is too high-profile a case for its outcome not to impact the public’s perception of the Court. By which I mean, and I think she means, that while Roberts & Co. regularly make out like bandits in the night, hijacking the law and transforming it into reflection of a 1980s Federalist Society
checklist, they do so only to the extent to which they expect that they can escape widespread public revulsion. Which in turn is determined by the extent to which the news media actually focuses on these ideological-agenda rulings before
the Court issues the ruling.
That, after all, is how we got Citizens United v. FEC. Roberts & Co. misjudged. Oops. Well, for heaven’s sake … I mean … y’know … who knew that the public would, um, actually get the Citizens United ruling?
makes much the same point as Greenhouse’s—that as a matter of law, this is not a close case—but with a slight twist. After giving a nod of recognition to the Greenhouse , which was published in that morning’s paper, Lithwick says that while she expects that the Court will uphold the statute, she’s not all that sure. As a legal matter, she says, this case is not the case of the century nor of the decade nor even of this term. Unless, of course, a 5-4 majority surprises almost all the legal commentators who actually know the law and follow the Court.
Which, she says, wouldn’t surprise her all that much, because the case is not really about the law at all, but instead about “optics, politics, and public opinion.” But ultimately, she thinks, Roberts and one or two of the others just won’t think this case is worth the cost in public opinion.
I agree. It’s not as if they get to pick a president in this one. There are, as Lithwick notes, other cases in their pipeline that could well do that. The oral arguments in those cases are, like the arguments next week, likely to be mere shows. But with a more limited-release audience and opposite results.