While we’re all waiting for the Supreme Court to issue its ruling on the Affordable Care Act, I remembered Rep. Jim Cooper touched on this at our blogger meet-up back in January. I revisited the recording which Sean Braisted posted and threw up a quickie transcript, because I thought you guys would be interested. Cooper of course is a Democrat and he voted for the ACA, and he also teaches a course in healthcare policy at Vanderbilt University.
Here were his thoughts on SCOTUS and the healthcare bill (and if you listen to it at Braisted’s place it starts around the 14 minute mark, I think…):
This is an amazingly important moment in America and hopefully it won’t be a Bush v Gore case where they make a totally political … the court needs the credibility when they’re deciding things according to the law. If they were to overturn the individual mandate that would be getting rid of eight years of Commerce Clause precedent. Now it is true before the New Deal that they had a much narrower view of government. But ever since the New Deal it’s been settled, Republican judge, Democratic judge, Commerce Clause is broad. If they were to suddenly narrow that, they’d be taking America to the 1920s.
And then for them to roll back Medicaid coercion? That would be astonishing. We would lose highway programs, we would lose tons of stuff. So what I have trouble helping people understand is, they think John Roberts, he’s conservative, Alito, he’s conservative, Scalia we know he’s conservative, and Thomas … what they don’t understand how they’re radical conservatives. Like, this idea that corporations are people? That is crazy. That is absolutely, flat-out crazy.
Some interesting headlines have hit the papers lately on the “what ifs” of the pending SCOTUS decision. (The funniest so far, hands-down, has to be Indiana Senate candidate Richard Mourdock, who accidentally posted all of his possible responses on YouTube before his team had a collective woopsies.)
Constitutional scholars seem to be of a like mind with Rep. Cooper, noting the court will lose all credibility if it overturns the individual mandate because it will so obviously be a political not legal decision.
Via Ezra Klein we have Yale constitutional law scholar Akhil Reid Amar noting:
“I’ve only mispredicted one big Supreme Court case in the last 20 years,” he told me. “That was Bush v. Gore. And I was able to internalize that by saying they only had a few minutes to think about it and they leapt to the wrong conclusion. If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”
Well, um, duh. Welcome to the world. Seems to me we’ve been headed down that pathway since the mid-90s. Where’ve you been, buddy?
Also from the Ezra link, here’s Kevin Drum (not a constitutional scholar, but whatever):
Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.
Again, what rock have you guys been living under? If even my Blue Dog congressman sees the radicals on the bench for what they are, what the heck is wrong with you pundits and scholars?
Ezra says SCOTUS has always been political and I’m not sure that’s the case, certainly not the level we see today. But as I noted back in March it does have a long history of making really crappy decisions like, for instance, Buck v Bell.
Southern Beale 
Southern Beale:
This is sort of tangenital but still, imo, pertinent to your post.
I have had thousands of people, literally, tell me that it makes no difference who they vote for as politicians are all the same. Aside from the fact that their statement is completely untrue and can be refuted with many, many examples I usually go for the simple explanation,
When Republicans are in power, only the wealthy benefit; when the democrats are in charge, everybody, in the parlance of the mob, is allowed to “wet their beaks”. That difference, btw, is diminishing.
Yes me too and I ask you this: who benefits from this apathy? The status quo, of course. No wonder that message is SO fucking pervasive. IS FEATURE NOT BUG.
Is anyone says that to me, I respond, “Then write in the name of someone you do respect, because you can’t consider yourself a patriot, if you don’t vote.”
Yes, the court has always been political. Otherwise, we wouldn’t have had decisions like Dred Scott and Plessy v. Ferguson. However, the great hope of people, like me, who believe in the rule of law is that the court will honor the Constitution, precedent and tradition in its decision making, even in the face of political dilemma. Unfortunately, that sometimes does not happen.