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Can Everyone Please Lighten Up About the Supreme Court?—A Commentary by Stephen L. Carter ’79

The following commentary was posted on Bloomberg.com on June 21, 2012.

Can Everyone Please Lighten Up About the Supreme Court?
By Stephen L. Carter ’79

As we await the U.S. Supreme Court’s decision on the constitutionality of the Affordable Care Act, the rhetoric of the statute’s supporters is growing increasingly heated -- almost panicky.

A decision against the act, we are told, would “reshape our fundamental understanding of the Court, the power of Congress, and long-standing principles of federalism.” A sweeping decision, critics have warned, “could challenge the basis of our modern federal administrative state.” Striking down the statute, we are assured, “will define John Roberts’s tenure and legacy.”

Even President Barack Obama and members of his administration have gotten into the act, solemnly warning of the consequences to the court itself should the statute be held unconstitutional.

To which I say: Lighten up!

Readers of this column know that I have problems with the law. But I think it highly unlikely that the justices will strike it down, and I am sticking to my view that the objections I and others harbor should not be the stuff of litigation. I have been teaching law for 30 years, and I just don’t see the criticisms of the act as raising serious constitutional questions.

Of course, the justices might disagree. If they do, so what? The courts have struck down statutes before, including big and important ones, and have often upset the working balance of government powers.

School Prayer

Think how different the nation would look, for example, had the school-prayer cases of the early 1960s come out the other way. One might object that there the justices were vindicating a fundamental right. But until they did so, the right not to listen to prayers did not exist. The very concept of the U.S. public school had been, since the system began, tied up with the idea of piety, Bible reading and communal prayer. An understanding that had existed since the founding, the court simply upended.

Well, yes (one might say), but that’s just the states. What about the federal government? The courts don’t strike down big, carefully thought-out regulatory plans. Not since the New Deal.

Really? Consider the Religious Freedom Restoration Act, passed overwhelmingly by a bipartisan vote in Congress and signed in 1993 by President Bill Clinton, who had lobbied hard for it. The statute was designed to make it easier for people of strong religious conviction to gain conscience exemptions from statutes of general application. (Yes, that was not long ago considered a core liberal principle.) The states and many businesses screamed about the costs the regulations would impose.

The Supreme Court brushed the law aside almost contemptuously, and somehow the republic survived. If the statute doesn’t ring a bell, the reason is only that it never went into effect; had it been upheld, the U.S. would be quite different.

Yes, the court has waded into divisive political controversies and, for doing so, has taken its lumps. In the end the court lost little of its legitimacy after its decisions in Roe v. Wade, which continues to infuriate many on the right, or Bush v. Gore, which continues to infuriate many on the left -- decisions that have in common shaky reasoning, inattention to precedent and holdings far broader than necessary to deal with the facts presented. (In a less polarized world, it would be unnecessary to note that one can criticize a case even when one is happy with the outcome.)

Two Cases

Indeed, in the court’s history, there are probably only two decisions that have actually weakened it -- cases handed down a century apart, that went in quite opposite directions. One was in 1857, Dred Scott v. Sanford; the other was in 1954, Brown v. Board of Education.

The Dred Scott case, declaring the Missouri Compromise unconstitutional and returning the freedman Scott to slavery, was so hated that politicians were able to campaign on its illegitimacy. One beneficiary was a little-known lawyer and former one-term congressman named Abraham Lincoln, who in a speech delivered in Springfield, Illinois, 155 years ago this month, suggested that the decision was not entitled to the same respect that other precedents enjoyed. We need not “acquiesce in it as a precedent,” said Lincoln, the way that we would had it “been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation.”

What about Brown v. Board of Education? The decision was plainly right, and timely, and moral, but it crippled the court in a way that is rarely mentioned: It gave us confirmation hearings. The Dixiecrats who in those days ran the Senate insisted that all nominees for the court henceforth come to Capitol Hill to answer questions about their views. In that nobler era, liberals objected on principle, arguing (correctly, I think) that the separation of powers forbade such inquiry.

The racists prevailed, however, and so started us down the ridiculous road to our silly modern circuses, in which the nominees pretend under oath to have no opinions on the grave constitutional questions they are going to confront.

Apart from those signposts -- and they are very big signposts -- the Supreme Court has survived all the mud that politicians and activists have tossed at it. Should the Affordable Care Act be struck down in any significant part, the politicians will have to fix the mess, perhaps doing a better job this time; the justices will survive.

Indeed, given the level of fervor directed at the court generally, and at Chief Justice John Roberts in particular, one could argue that the justices will be made weaker if they uphold the statute.

Next Frenzy

That didn’t have to happen. It’s entirely the fault of their critics. If after this public campaign the justices should reach what I think is the correct decision (leaving the law in place), activists of all stripes will quite sensibly begin to wonder whether the drumbeat of criticism had its effect -- and on what issue an anti-court frenzy might next be whipped up.

In 1992, in her plurality opinion in Planned Parenthood v. Casey, Justice Sandra Day O’Connor defended the court’s constancy in protecting abortion rights against those who disagreed. The country, she wrote, would lose confidence in a judiciary that reached its decisions “unnecessarily and under pressure.” Those who are launching today’s pre-emptive attacks on the court evidently think she was wrong.

Delegitimizing the institutions that check and balance is a dangerous game. Those who engage in it should remember that once the game begins, everybody gets to play.

(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and his next novel, “The Impeachment of Abraham Lincoln,” will be published in July. The opinions expressed are his own.)