David Bernstein's recent post raises the issue of how the political situation might affect the Supreme Court's consideration of a case challenging the constitutionality of the Obama health care bill (should it be passed). I tend to agree with David that the Court is unlikely to invalidate any important parts of such a bill so long as the Democrats retain control of both the presidency and Congress.

Some argue that the Court simply "follows the election returns" and only invalidates legislation that the voters dislike or at least don't care about. That is clearly an overstatement. The Court has sometimes invalidated popular laws or practices. Think of the school prayer decisions and the flag burning cases, in both of which areas the Court repeatedly issued rulings that the vast majority of voters disliked. The Court also sometimes upholds very unpopular laws against constitutional challenge, as in Kelo v. City of New London. However, it is extremely rare for the Court to strike down a law that enjoys strong majority support from both the general public and the political elite, and is a major item on the current political agenda. Doing that is likely to create a head-on confrontation between the Court and the political branches of government, which the Court will almost certainly lose, as happened when the Court struck down various New Deal laws in the 1930s.

When the Court has invalidated popular laws, it has usually been in fields where political elites actually agree with the Court (as with flag-burning) and can thus insulate it from political backlash, or ones where the issue is not really a high priority for most voter. School prayer and flag burning both fall in that category, as also did the popular laws invalidated by the Supremes in such Rehnquist-era cases as United States v. Lopez (the Gun Free School Zones Act, which polls showed to be popular) and United States v. Morrison (a part of the Violence Against Women Act, a case in which 36 states filed amicus briefs supporting the government).

By contrast, health care is currently both a major concern of voters and a top priority for political elites in the Democratic Party. If the Democrats succeed in passing Obama care and then retain their congressional majorities, the Court will be on notice that invalidating any major part of the health care bill invites a massive confrontation with Congress and the president. The most ideologically committed justices (e.g. - Thomas) might be willing to take the risk. But the moderates won't. They know that Congress and the president could react with harsh measures such as refusing to obey the decision, implementing an updated version of FDR's court-packing plan (the threat of which helped persuade the Court to back down in 1937), or passing laws limiting the Court's jurisdiction. Such extreme measures are rarely used; but they could be employed if the Court crosses Congress, the president, and the voters on a major issue they care about intensely.

This, of course, assumes that a majority of the justices would want to strike down the Obama health insurance mandate if they thought they could get away with it, an assumption I questioned in my last post. But even if the justices were more interested in constraining congressional authority than I think they are, I doubt they would be willing to take the political risk of doing so in this case.

I am a strong advocate of judicial review of federalism issues, and I hope that the Court will, over time, roll back Commerce Clause precedents that give Congress virtually unlimited power. But achieving that goal will be a slow, incremental process that must take due account of political constraints. It is unrealistic to expect the Court to start the process with a decision that risks a head-on collision with the political branches over a major policy issue.