More on the Left’s Threat to Delegitimate the Supreme Court if it Invalidates the ACA

Over on the Liberty Law Blog, Mike Rappaport has this thoughtful post on the left’s concerted push to threaten the legitimacy of a decision invalidating the entire Affordable Care Act:

[Jeff Rosen’s] comparison with the New Deal is not well taken.  The Obama Administration and the health care law do not have anything like the popularity that the Roosevelt Administration and the signature items of the New Deal had.  During the New Deal, the Roosevelt Administration and the Democrats were a political juggernaut as compared to the present day anemic Obama Administration.  As I show in this paper, Roosevelt and the Democrats won landslide after landslide, in the Presidential election of 1932, in the midterms of 1934, and in the President election of 1936.  Obama and the Democrats, however, took power in 2008 (after the Democrats won significant victories in 2006), but then were walloped in the midterm elections of 2010, losing 63 seats in the House.  Moreover, a significant portion of those losses were due to the passage on party line votes of the unpopular health care law.  By contrast, much of President Roosevelt’s agenda was passed with enormous majorities, including with significant Republican support (small as it was).

Even if President Obama is reelected – a big if, I would add – the House is very unlikely to turn back to the Democrats.  And the Senate will be closely divided and deadlocked, whichever party has the majority.  Thus, at worst, the Supreme Court need not fear any legislation being passed that would attack them.  Nor need the Court fear the criticisms of liberal Democrats about a very unpopular health care law.  Moreover, if President Obama is defeated and the Republicans at least keep the House, then there will be a strong coalition of political actors supporting the Supreme Court’s decision.

The bottom line here is that the Obama Administration and the health care law are not the New Deal and Social Security, even though liberals keep imagining that they are.  If the Supreme Court decides to strike down the law as an unprecedented exercise of federal power, the Court need not fear a repeat of the New Deal.

There is no escaping the fact that the entire Affordable Care Act is deeply unpopular and any decision to uphold it will not be well received by the public.

And, this morning, the Wall Street Journal has a strong editorial on the subject:

The first fallacy is defining judicial activism as overturning a Congressional law. Since Marbury v. Madison established judicial review in 1803, the High Court has overturned hundreds of laws in part or whole. The real measure of activism is whether the Court’s reasoning is rooted in Constitutional principle. If it is, the Court is not activist but is adhering to the highest legal principles.

Regarding the Affordable Care Act, we’d argue that upholding the individual mandate to buy health insurance requires far more judicial activism. That’s because if the Court finds this federal mandate to be Constitutional, it will have no principle on which to limit future purchase mandates.

Once health insurance can be mandated, Congress will inevitably find that other products or services are equally essential to national well-being. Future Courts will either have to find all such purchase mandates to be legal, in which case there is no limiting principle, or they will have to pick and choose, which means an endless exercise in policy-making.

Far better for judicial modesty—and the reputation of the Court—to draw the line that the Commerce Clause forbids Congress from mandating that individuals engage in commerce because such police powers are reserved for the states. This is the truly restrained judicial position.

The most dishonest argument is the liberal media chant that overturning the law means overturning the New Deal era’s Commerce Clause precedents. This is propaganda. None of the plaintiffs advocated that any precedents be overturned, even though in our view some of those cases deserve to be overturned. Paul Clement and Michael Carvin, who argued for the plaintiffs before the Court, explicitly denied any such desire.

And, as Ed Whelan insightfully observes on NRO, we are likely to find out whether any justices capitulated to this pressure:

In this regard, I’ll add that one unintended effect of Jeffrey Toobin’s (badly flawed) revelations about the behind-the-scenes goings-on in the Citizens United case ought to be to undermine the Left’s ongoing efforts to intimidate the justices on the individual mandate. Specifically, it’s reasonable to assume that a year or two from now (if not sooner) some reporter will provide the “inside story” of what happened at the Court. And little could be more damaging to the reality or perception of the Court’s independence than evidence that a justice changed course from his vote at the post-argument conference in apparent response to the intimidation campaign.

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