By Rob Weiner, formerly Associate Deputy General in the U.S. Department of Justice is a partner at Arnold & Porter LLP. Many of the points in the following post are reflected in an earlier post for Balkinization called “Politics by Other Means,” though with a somewhat different focus.
Ambrose Bierce defined “accuse” as, “To affirm another's guilt or unworth; most commonly as a justification of ourselves for having wronged him.” Thus it is that the opponents of the Affordable Care Act, with no hint of irony, accuse those supporting the Act of interjecting politics into the cases before the U.S. Supreme Court for the purpose of intimidating the Justices. But it was those same opponents -- Republican politicians -- who initiated the litigation after Democrats won a partisan battle in the legislative arena and who have overtly framed the lawsuits as part of a grand political strategy.
The focus of the legislative battle was the Affordable Care Act, adopted on March 23, 2010, with no Republican votes. As Republican legislators were vowing to repeal the newly enacted bill, the Republican Attorney General of Florida, along with 11 other Republican State Attorneys General and one Democrat, filed suit seven minutes after President Obama signed it into law. Four of the Republican AGs proceeded over the objections of their Democratic governors. A twelfth Republican AG, from Virginia, sued separately.
Bypassing the federal courthouse only blocks from his office in Tallahassee, the Florida AG brought the suit more than 200 miles away in Pensacola. That jurisdiction had no connection to the case, but it was an enticing forum for the plaintiffs. All three of its federal district court judges are conservatives appointed by Republican presidents. Although the federal rules did not prohibit this forum shopping, it highlighted the partisan coloration of the case.
A few months later, seven more states joined the suit. Three were represented by their Republican AGs. The other four states, however, had Democratic AGs who believed the litigation to be meritless. The Republican governors of those states therefore filed instead. In January 2011, seven months after the court-ordered deadline for adding new parties, four more Republican AGs and one Republican governor sought to join the litigation. Why the belated “me-too”? One reason: the November 2010 elections, which changed the leadership of these five States from Democratic to Republican.
Even the opponents of the Affordable Care Act have acknowledged, perhaps unwittingly, the partisan tinge of the suits. The Wall Street Journal in January 2011 urged “Republican governors” to join the lawsuit, as if the decision to sue turned not on the governor’s legal assessment or approach to constitutional interpretation, but only on his or her partisan affiliation. Tim Pawlenty, then a Republican presidential candidate, likewise urged Republican participation in the suit, essentially treating the extraordinary act of challenging the constitutionality of a federal statute as if it were the political analogue of a gang initiation.
To some degree, the widening ideological chasm between Republicans and Democrats may explain the uniform partisan division as to the litigation. But that divergence is not nearly a complete explanation. Common sense counsels that in the adjudication of constitutional issues, neither political party has a monopoly on wisdom, that party preference and constitutional insight do not precisely coincide. The health care litigation illustrates the point. Of the 47 Republican senators who argued in amicus briefs that the individual mandate is unconstitutional, 10 had previously sponsored legislation imposing such a mandate. Moreover, one of these amici, Senator Charles Grassley, reported to Fox News on June 19, 2009 that there was “a bipartisan consensus to have individual mandates.” Given their solemn oath to uphold the Constitution, these legislators presumably did not believe that the mandate was unconstitutional at the time they supported it. Against the backdrop of the political U-turns key Republicans took to hew the new party line, the seamless congruity today between party affiliation and asserted constitutional grievance signals that partisanship may have breached the confines of the legislature, that the plaintiffs seek to win in the courts what their comrades-in-arms lost in the Congress, and that the case presents policy choices vested in elected legislators, not constitutional issues suitable for judicial resolution.
In the halls of Congress, political partisanship is useful, perhaps even essential. But it has no place in the courtroom. The essential feature of constitutional democracy is majority rule, and the majority rules through their elected representatives in Congress and the Executive Branch. The Supreme Court may properly override decisions of the majority and declare a law unconstitutional when the political process breaks down -- as when racial, ethnic or other minorities are denied a voice -- or when fundamental individual rights are at stake. But the Court for the most part has exercised that power sparingly, at least until now. Deferring in this manner to the outcome of legislative debates, rather than re-enacting those debates with fewer, unelected players, has generally insulated the courts from the factiousness of the legislative process.
Where, as here, no precedent establishes that the challenged statute is invalid, where the Court is asked to formulate new rules, and where the plaintiffs are politicians seeking a result that they and their allies lacked the votes to achieve in Congress, the Court must assess carefully whether the legal arguments are merely lipstick on a political dispute. The Court’s principal asset -- its legitimacy -- depends on its detachment from the political fray. Justice Felix Frankfurter’s warning some 60 years ago still holds true today: “History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.”
The warnings by the president and others regarding the risks of such judicial assertiveness in the health care cases thus reflect an effort to protect the Court, not to threaten it. Indeed, some of the nation’s most respected conservative judges and scholars, who have no conceivable interest in “bullying” the Court (if it could be bullied), have likewise tried to deflect the Court from the treacherous political path the health care plaintiffs seek to blaze. Judge Laurence Silberman of the Court of Appeals for the D.C. Circuit -- honored with the Medal of Freedom by President George W. Bush as “a clear-eyed guardian of the Constitution” emphasized in upholding the Act, “the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.” In the same case, Judge Brett Kavanaugh, often touted as a potential Republican nominee to the Court, echoed the admonition that political issues should be left to the political branches, particularly where, as here, the challenged legislation was the product of “a high-profile and vigorous national debate.” Judge Jeffrey Sutton of the Sixth Circuit, a former law clerk for Justice Scalia and also a conservative intellectual leader on the bench, likewise urged restraint. He observed that, ”Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.” Judge J. Harvie Wilkinson, a Reagan appointee to the Fourth Circuit and yet another distinguished conservative intellectual, was similarly direct. In a recent book, he expressed skepticism at the notion that Congress cannot regulate “activity affecting one-sixth of the national economy,” and warned that a decision striking down the law, if “less than bulletproof[,] will be seen as a purely political undertaking.”
With equal frankness, leading conservative scholars sounded similar alarms. Harvard Law School Professor Charles Fried, Solicitor General in the Reagan Administration, decried the political overtones of the claim that the Act impermissibly regulates “inactivity,” and cautioned that a decision invalidating the Affordable Care Act “would be more problematic than Bush v. Gore.” Likewise, Orin Kerr, a Georgetown law professor with a libertarian bent, worried that a decision striking down the mandate ”would make the Supreme Court a political player in ways that dwarf recent examples.” And Columbia Law Professor Henry Monaghan, also a distinguished conservative scholar, suggested that the opponents of the Affordable Care Act should “resort to the polls, not the courts.”
Thoughtful conservative judges and scholars thus have recognized not only the legal weakness of the attack on the health care law, but also the institutional harm that would result from a decision striking it down by a vote narrowly aligned with the prior political affiliations of the justices, the partisan division of the litigants, and the party lineup on the underlying legislation. In identifying these risks, those conservative judges and scholars plainly are not trying to intimidate the Court. There is no basis for lodging that charge against others who express the same concerns.