It’s bad enough that five Republican Supreme Court justices may be about to engage in a wild bout of judicial activism to overturn health-care reform. But now conservatives are taunting liberals for being out of touch with the latest cutting edge right-wing judicial thought, having expected the case would be a slam dunk. John Podhoretz and Jay Cost have columns arguing that liberal surprise at the Court’s warm reception for anti-Obamacare arguments proves that liberals have just been ignoring all these really smart conservative judicial critiques.
Actually, there’s been a split. The liberals who previously expressed the most confidence that the Court would uphold the law have been liberal legal analysts, like Jeffrey Toobin, Walter Dellinger, and Linda Greenhouse. They have expressed surprise precisely because they have followed the arguments closely and found the challenges to be so wildly unpersuasive. What’s more, residing within the legal world, they had at least a residual sense of the Court’s duty to ignore politics and follow precedent.
On the other hand, liberals who are not legal analysts have generally given the Court a much higher chance of striking the law down. I’d put myself in that group. Bush v. Gore pretty much killed off any sense of the Court — certainly its Republican majority — placing precedent over its own partisan and ideological leanings. I think the justices care about the prestige of appearing non-political, and will try to save up capital by ruling against their ideological interests in low-profile cases, but if afforded the opportunity to decide an enormous partisan controversy, they will predictably do so.
I think there’s a strong chance Anthony Kennedy, the least partisan Republican, will vote to uphold, in which case two or three other Republicans will follow. But the notion that a Scalia or a Roberts might cast the deciding vote to uphold, merely because of a precedent they had authored or endorsed, always struck me as wildly naïve. I have the sense that most liberal analysts who are not immersed in the legal world have had a similarly cynical expectation.
And, look, the shock of the liberal analysts who expected a landslide does prove they misjudged the case, but their error lies not in underestimating the arguments, which they imbibed closely, but in overestimating the Republican justices. Or, at least, it’s impossible to settle this question without having a view about the underlying legal merits.
Suppose the Affordable Care Act failed to clear the Senate, but liberal lawyers filed suit claiming the Constitution created a right to health insurance. Or suppose George W. Bush had privatized Social Security, but liberals sued to overturn it. Conservative legal experts would probably say the suits are crazy, they have no chance, not even Ruth Ginsburg could possibly endorse such a frivolous claim. (And yes, I think you could construct legal arguments for those positions just as strong as the case to overturn Obamacare — that is, strong enough to provide a fig leaf to a judge eager to embrace its conclusion, but totally nuts on the merits of it.) If those suits actually met some success — I suppose we have to imagine a fifth Democrat is sitting on the Court — the conservative conclusion probably wouldn’t be that their side’s legal experts were proven wrong.