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Obamacare at the High Court: A Self-Inflicted Wound for the Supremes?

President-elect Obama and Chief Justice Roberts in 2009

President-elect Obama visits the Supreme Court as Chief Justice John Roberts Jr. looks on in January 2009.

It’s almost impossible to feel anything but secure in the quiet serenity of the U.S. Supreme Court building. Surrounded by the Court’s unobtrusive, yet ubiquitous, police force, the Third Branch seems impervious to attack. The majestic building, at 1 First Street in North East Washington, has been labeled the Marble Temple, and it exudes a sanctified ambiance. 

In my nearly four decades of visiting the Court, including spending a year there as a Judicial Fellow in 1994-95, I have only been fearful twice. One evening, after attending a formal dinner in the building’s soaring Great Hall, I noticed the Court’s police officers searching under bushes, presumably for explosive devices. It was the anniversary of Roe v. Wade, and hoards of pro-life demonstrators had surrounded the building all day, as they do every year to protest the justices’ 1973 decision creating, by their 7-2 vote, a fundamental right for women seeking to terminate their pregnancies in the first trimester. 

The next time fear intruded on a trip to the Court came the day of Bush v. Palm Beach County Canvassing Board’s oral argument. I was trying to make my way into the building to hear one of the Court’s most historic cases. Hundreds of boisterous demonstrators, supporters of Al Gore or George W. Bush, swarmed the sidewalks. For a few minutes, I couldn’t move by my own volition and literally was swept along by the crowds. One demonstrator was dressed as a ballot box, and the Reverend Al Sharpton led a march around the building, chanting, “Count all the votes!” Scores of Bush supporters countered with their “Sore/Loserman” signs, parodying the “Gore/Lieberman” Democratic ticket. Two weeks later the litigation returned as Bush v. Gore, and the Supremes would decide the 2000 presidential election. 

The nearly unprecedented three days of oral argument (a total of six hours on March 26-28) in the Obamacare Case give every indication of prompting similar demonstrations at the Court’s doorstep. In fact, both sides in the vigorous debate over the Patient Protection and Affordable Care Act (PPAACA) are focusing their efforts on judicial ground zero. Two conservative interest groups, Americans for Prosperity and the Tea Party Express, plan to rally on the Capitol grounds, a stone’s throw from the Court. Senator Patrick J. Toomey (R-PA) and Representative Michele Bachmann (R-MN) are scheduled to speak. Will they spark the same type of frenzy against the justices that emerged in 2009 when mobs opposing health-care reform spat on Congressmen and hurled racial epithets at them?

Supporters of the president’s health-care reform have criticized him for missing opportunities to promote its more popular provisions: allowing young adults to remain on their parents’ insurance until age 26; requiring coverage of preventive services; eliminating lifetime caps on benefits; and banning exclusion of children with pre-existing medical conditions. Outside the Court, pro-reform groups are organizing speeches by Americans who have benefited from the act’s provisions. Sympathetic radio hosts will interview Obamacare advocates across the street from the justices’ chambers.

In the staid courtroom, packed to its marble columns with more than 300 spectators, nine jurists will hear arguments on whether the PPAACA’s individual mandate and Medicaid expansion are within Congress’s authority to regulate interstate commerce. On procedural grounds, the Court must also determine whether the entire law falls if only one part is voided, and whether the individual mandate penalty can even be challenged before its 2014 implementation. Once seated behind their mahogany bench in the Court’s inner sanctuary, the justices will hear nothing of the circus maximus being performed outside.

So who cares what transpires beyond the quiet precincts of the Marble Temple? Anyone who values the Court’s “priestly” image should be concerned. When the high tribunal steps into the political thicket, it does so at its own peril. A recent Bloomberg National Poll discovered that the vast majority of Americans surveyed believes that the Supreme Court will not confine its health-care decision to objective legal analysis. Instead, Democrats, Republicans, and Independents alike responded that the justices’ politics will intrude on their opinions.

To the Court’s credit, it has usually lived up to the Founding Fathers’ hope that the Third Branch would remain unsullied by partisan politics. By so doing, it consistently outscores the president and Congress in opinion polls that measure levels of public trust and confidence in the three branches. Of course, it would take very little effort to best Congress’s recent approval ratings, hovering in the low teens. As the president has slipped under 50 percent approval for much of the past year, the Supreme Court has maintained its typical ratings in the 50-60 percent range

Yet the health care case, with its obvious liberal and conservative fault lines running along the divide over the scope federal government power, may split the Supreme Court into its well-known ideological blocs. For the first time since the showdown between FDR and the justices over New Deal laws, the current jurists’ partisan divisions are exact images of their appointing presidents. Democratic nominees Ginsburg, Breyer, Sotomayor, and Kagan will undoubtedly support federal health-care reform advocated by Clinton and Obama. Republican nominees Scalia, Kennedy, Thomas, Roberts, and Alito are more likely to advocate limiting Congress’s regulatory power, as did Reagan and the two Bushes. 

If President Obama loses this judicial fight, his political option will be to make the Court an issue in his 2012 re-election campaign. His face-to-face assault on the justices’ Citizens United decision, in his 2010 State of the Union address, proved that the former constitutional law professor doesn’t fear challenging the Court in the political arena. That strategy is his prerogative. By taking on the most partisan issues of the day (campaign finance, health care, affirmative action, religious freedom), the justices have invited such an attack and jeopardized their revered independence. Justice Oliver Wendell Holmes famously stated that the Court’s quiet atmosphere was the illusory calm of the storm’s eye. By becoming storm-chasers, however, the Supremes have now placed themselves in the bull’s eye of presidential politics.

Barbara A. Perry is a Senior Fellow in the Presidential Oral History Program at the Miller Center.  You can follow her on Twitter @tweetbriar.

Date edited: 03/26/2012 (5:03AM)


Your new blog is off to a fabulous start with Barbara Perry’s pertinent comments on the health-care case currently being heard at the Supreme Court.  Writing with appropriate touches of humor, she gives us a pertinent historical perspective, explains the partisan divide that exists in today’s court and notes the slippery slope of judicial activism that may have been embarked upon by the Justices.

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