Tense wait for court ruling on Obamacare

Martin Flaherty in The Financial Times, June 24, 2012

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When John Roberts was being confirmed as chief justice of the Supreme Court in 2005, he famously said that the nine judges on the highest US court should be like baseball umpires, whose job it is “to call balls and strikes and not [to] pitch or bat”.

But almost seven years later, Mr Roberts has presided over a bench that has issued an increasing number of 5-4 decisions, a trend that has fuelled Americans’ suspicions that the court is becoming ever-more political and that has exacerbated the decline in its public standing.

Those perceptions could be heightened this week, when the Supreme Court issues its much-anticipated ruling on whether President Barack Obama’s 2010 healthcare reforms were constitutional.

At the heart of the healthcare case is how the justices view the commerce clause, one of the most widely debated parts of the constitution, and one that has only grown more contentious as the public has become more concerned about the scope of federal government.

Another 5-4 decision – after the Bush vs Gore ruling that decided the 2000 election, and the similarly split Citizens United ruling that upended campaign finance rules in 2010 – could exacerbate perceptions that the court is becoming more activist.

“There is a real danger of that,” said Paul Smith, a Supreme Court specialist at the Jenner & Block law firm. A 5-4 decision to overturn even part of the law “would be seen by many people as part of a [series] of decisions consistent with one party”, he said, alluding to the Republicans.

As with Bush v Gore and Citizens United, the healthcare ruling could have a substantial impact on the direction of a US election. To strike down the law would give Republicans a legal victory to tout as they persist in criticising the Obama administration’s “over-reach”.

But it could also infuriate and energise the liberal Democratic base that has become increasingly disillusioned with Mr Obama during the past three and a half years, and which might not otherwise vote in large numbers again this year.

And, as in both cases, the public is deeply divided.

A poll by the New York Times and CBS News this month found more than two-thirds of respondents said they hoped the court overturned all or part of Mr Obama’s healthcare law. Three-quarters also said they thought the justices’ decisions influenced by personal or political views.

As if to emphasise a steady decline in the court’s standing, a recent Pew Research Center poll found that only 52 per cent of Americans have a favourable opinion of the court – the lowest rating since it started the poll in 1987.

Barry Friedman, a New York University professor, contends the bench is influenced by public opinion in the most salient cases, such as the healthcare one.

“But they don’t always get it right first time,” Mr Friedman said, citing the 1972 case of Furman vs Georgia, when the court essentially struck down the death penalty, then reversed course four years later.

For all the talk of judicial impartiality, the court is an inherently political body, given the practice of presidents making lifetime appointments of judges thought to share their political persuasions.

Mr Roberts was appointed by George W. Bush when he was only 50, setting the court up for decades of conservative leadership. Both Mr Obama’s appointments have been liberals.

The idea of the activist court – viewed as acting on personal or political considerations rather than on the law – emerged with the Warren court of 1953 and 1969.

Earl Warren, Republican governor of California, was a more liberal justice than anticipated and presided over a court that issued expansive rulings on civil liberties and federal power, including Brown v the Board of Education in 1954, which ended racial segregation in schools.

William Rehnquist, appointed by Richard Nixon and elevated to chief justice by Ronald Reagan, promoted a conservative legal view that power should be given back to the states.

The conservative bent has continued since Mr Roberts was appointed seven years ago.

Nevertheless, Tom Goldstein, editor of the Scotusblog website, said the chief justice’s job was to protect the institution of the court. “[Roberts] will want the court to be as clear as possible that it is making a legal decision not a political one,” he said.

But if the court were to strike down all or part of the law, as widely expected, it would inevitably be seen as a political decision, said Martin Flaherty, a constitutional law expert at Fordham Law School.

“It’s going to be seen as very political, coming in the midst of the election and with Republicans against it,” Mr Flaherty said. “But in terms of constitutional doctrine, will this signify a historic pulling back of federal power? I don’t think so, because the healthcare market is unique.”