Citizens United or Kelo?

In my contribution to the NRO symposium Ilya mentions below I address the claims made by liberal commentators that the Supreme Court would sacrifice its own credibility were it to strike down the individual mandate.

Commentators aghast at the possibility that the Court may invalidate a key portion of President Obama’s signature legislative accomplishment have suggested that doing so will undermine the Court’s credibility. They suggest that a decision striking down the mandate would be another Citizens United or, worse, Bush v. Gore. Given the mandate’s unpopularity, this is a hollow threat. If anything, the justices should be more wary of another Kelo, of upholding an assertion of government power that most Americans find repugnant. This is not to suggest the justices should base their decision on popular opinion, for the Constitution should be their guide. It is, however, to suggest that the Court’s credibility is at risk when it fails to constrain unconstitutional assertions of government power.

It’s also worth noting that many of those concerned with the Court’s institutional credibility in this case are strangely mute when the Court is poised to invalidate statutes or other government policies with which they disagree.  If invalidating significant legislation were such a threat to the Court’s legitimacy, the Court takes a much greater risk when it strikes down national security legislation embraced by the President and adopted by a bipartisan congressional majority (as it did in Boumediene), than when it strikes down an unpopular and unprecedented statute adopted on a party-line vote.  Whether or not it was correctly decided, Boumediene stands as the most aggressive exercise of judicial review of a national security measure enacted by Congress in the nation’s history — and it is a far better poster-child for judicial “activism” (if we must use that word), than anything the Court is likely to do here.