Supreme Court justices could face blowback no matter how they decide healthcare case

As the Supreme Court hears what might be its most high-profile case since it determined that George W. Bush had won election to the White House in 2000 in Bush v. Gore, it’s worth considering the reaction the justice might get to their ruling — whichever way it comes down.

Emily Bazelon, legal affairs editor for Slate, an attorney and instructor at Yale Law School, said it’s “unusual” for a signature piece of legislation by a sitting president to come before the Supreme Court so quickly and directly.

“That’s why, were the court to decide to overturn the law, it would be a gargantuan political moment,” Bazelon said.

Some legal observers have compared the impact of this decision to the impact of the Dred Scott decision(http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford), which determined that Africans brought to the United States as slaves had no rights under the Constitution. It also overturned the Missouri Compromise, which had provided for where slavery could and could not exist in future territories of the United States. But by the time Dred Scott was decided, decades had passed. That, Bazelon said, makes it an entirely different matter.

“Here we have this very contemporary law. It’s from 2010. It’s brand new. Obviously, the president who passed it is up for re-election. The law hasn’t had the same amount of time to change in terms of how people view it,” Bazelon said.

Rather than Dred Scott, Bazelon looks to the court’s decision on Franklin Delano Roosevelt’s New Deal laws as instructive for this case. The Supreme Court struck down a great portion of those laws.

“That leads to a big upheaval and, eventually, one of the Supreme Court justices switches sides in this famous moment and FDR’s legislation was upheld,” Bazelon said. “That’s why we have Social Security and lots of other big government programs.”

She said if the Affordable Care Act is struck down, it make look a lot like the Supreme Court’s reaction to FDR’s New Deal legislation.

“It’s important to remember the context is different though,” she said. “In the 1930s, these justices who were not willing to go along with FDR were really reflecting the constitutional assumptions of their time.”

At that time, Bazelon said, there were many questions about whether the federal government could impose laws that, for example, set limits on the workday. Now, though, we have years of decisions by the Supreme Court itself that support the expansion of federal power in the wake of the New Deal decision.

“The Supreme Court, were it to strike down the Affordable Care Act, would have a lot more backpedalling to do,” she said.

Bazelon said the Supreme Court may be weary of issuing another divisive 5-4 decision and may look for a way to issue a decision that gives neither side the decision they so badly want.

“If you just look at this on the law, and you think about the different decisions that have been issued by the court on federal power, this is a straight-forward case,” Bazelon argued. “It’s maybe 8-1 because Justice Clarence Thomas has never gone along with the whole of decisions.”

But the Supreme Court doesn’t have to abide by its own precedence, and this decision could come down in any way. But if it does strike down the law, Bazelon said the court will have to “reach to find a rationale that’s deeply rooted in the law and in precedence, as opposed to in politics.”