Risky Business

By Brad Joondeph
In Health Law
March 29, 2012
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brad-joondeph3Of course, all the usual caveats apply–oral argument can be misleading, it is hard to know exactly what the justices are thinking, etc., etc.

That said, most everyone seems to agree that the Court is headed towards invalidating the minimum coverage provision. Moreover, after listening to this morning’s argument, there seems at least a non-trivial chance that the Court will invalidate the entire ACA, all 2,700 pages, because the individual mandate is unseverable. (This would conveniently moot the Medicaid question that bedeviled them this afternoon.)

If the Court were to take both of these steps, I fear it would thrust itself into a full-fledged political maelstrom, the intensity of which the justices are unlikely to appreciate. Justice Thomas could not care less; he has said as much, many times. Justice Scalia probably feels the same way; the Constitution says what it says, period.

But the Court, regardless of its politics, cannot afford to be wholly oblivious to the political consequences of its decisions, at least as they relate to its own institutional standing. A decision invalidating the ACA (especially one that takes down the Act in its entirety), rendered by a predictable 5-4 split, will serve to reinforce the notion among many Americans that the Court is no more than another partisan institution, one that operates much like the other branches. That would be wrong factually, but I fear it would be the prevalent perception. And such a perception could do real lasting damage to the Court.

The danger seems especially acute given all the other highly partisan, ideological issues presently heading the Court’s way. Consider the following cases the Court is apt to decide in the next 2 or 3 years: the Arizona immigration case (to be argued next month); the Texas affirmative action case (to be argued in the fall); the Citizens United sequel from Montana (cert petition filed earlier this week); the constitutionality of Section 5 of the Voting Rights Act (currently percolating in the courts of appeals); the constitutionality of California’s Proposition 8 banning gay marriage (currently awaiting a decision from the Ninth Circuit about an en banc hearing); and the constitutionality of the Defense of Marriage Act (also percolating in the courts of appeals).

Again, we are just speculating at this point. But a steady stream of highly divisive, conservative 5-4 decisions, led off by a decision to invalidate the most important federal statute in a generation, could be toxic. It could take years for the Court to regain its standing among the American public.

This is not a partisan concern. It is a concern–voiced eloquently by Chief Justice Roberts on several occasions–rooted in beliefs about the importance of the Supreme Court, the independence of the federal judiciary, and ultimately the rule of law.

In other words, I fear the justices might be playing with fire. I sure hope they are careful.

[Ed. Note: This post originally appeared on the aca litigation blog, an amazing resource filled with case documents, transcripts, and in-depth analysis. Bradley Joondeph is a Professor of Law, Santa Clara University School of Law ]
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