Court Health Care Decision Can Wait
Sean Evans, Chair and Associate Professor of Political Science
Feb 11, 2011
Mr. Dooley, a turn of the 20th century cartoon character, was famous for saying "No matter whether the country follows the flag or not, the Supreme Court follows the election returns." With two judges recently declaring Obamacare unconstitutional in part or in whole, we need to remember that the Supreme Court is a political and legal institution.
Regardless of its legal beliefs, the court is political because it is the "least dangerous branch." Since it cannot enforce its will, the court relies on the executive or legislative branch to enforce its decisions. This fact means that the court is unlikely to hear the case until 2013, and its decision will take into account the 2012 election results.
First, contrary to many expectations, the Supreme Court will delay hearing challenges to Obamacare. Justices are strategic actors who avoid making decisions that may threaten judicial power and thus their ability to achieve their legal goals. They realize that it is undemocratic for unelected judges to overturn laws made by the people's representatives. Therefore, justices rarely strike down federal laws, and the laws they strike down are usually older laws. Justices are more leery of striking down laws of serving presidents and Congress because they can alter court jurisdictions and workloads, and appoint and confirm judges of opposing ideologies. Out of caution, the court prefers cases to exhaust all political and legal avenues before ruling. The justices see 2012 as the last political resort before Obamacare really kicks in in 2014. The court reasons that it should not decide when Republicans may win the Senate and the presidency and repeal Obamacare.
Moreover, both liberal and conservative justices are extremely hesitant of ruling in the middle of the 2012 presidential election for fear of motivating the base of the losing side and affecting the outcome of the election — and indirectly, the future composition of the judiciary.
Finally, the court realizes that its greatest power is its legitimacy. The people generally think more highly of the courts than other political institutions because they see them as neutral arbiters. Ruling on this case forces the court to choose sides on an extremely controversial issue and may undermine its support, like Bush v. Gore did in 2000.
Second, this means the 2012 election results are very important. A Republican sweep would end Obamacare legislatively. If Democrats retake the House and gain united control of government, the conservative justices would see no institutional political support for overturning Obamacare. The court could overturn it, but that would be politically dangerous in the face of public approval of Obamacare via Democratic victories. Either way, the people would have spoken clearly one way or the other.
The problem facing the court is an election resulting in divided government. Justices would find congressional support for overturning Obamacare and presidential support for upholding Obamacare. But either decision would cost the court legitimacy in the eyes of many citizens. So, if you support or oppose Obamacare, remember you can influence the court — through voting.
This column originally appeared in the Feb. 11 edition of The Jackson Sun