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Why the public’s growing disdain for the Supreme Court may help Obamacare

Robert Reich, professor of public policy | June 11, 2012

The public’s growing disdain of the Supreme Court increases the odds that a majority will uphold the constitutionality of Obamacare.

The latest New York Times CBS Poll shows just 44 percent of Americans approve the job the Supreme Court is doing. Fully three-quarters say justices’ decisions are sometimes influenced by their personal political views.

The trend is clearly downward. Approval of the Court reached 66 percent in the late 1980s, and by 2000 had slipped to around 50 percent.

As the Times points out, the decline may stem in part from Americans’ growing distrust in recent years of major institutions in general and the government in particular.

But it’s just as likely to reflect a sense that the Court is more political, especially after it divided in such partisan ways in the 5-4 decisions Bush v. Gore (which decided the 2000 presidential race) and Citizen’s United (which in 2010 opened the floodgates to unlimited campaign spending).

Americans’ diminishing respect for the Court can be heard on the right and left of our increasingly polarized political spectrum.

A few months ago, while a candidate for the Republican presidential nomination, Newt Gingrich stated that the political branches were “not bound” by the Supreme Court. Gingrich is known for making bizarre claims. The remarkable thing about this one was the silence with which it was greeted, not only by other Republican hopefuls but also by Democrats.

Last week I was on a left-leaning radio talk show whose host suddenly went on a riff about how the Constitution doesn’t really give the Supreme Court the power to overturn laws for being unconstitutional, and it shouldn’t have that power.

All this is deeply dangerous for the Court, and for our system of government.

Almost 225 years ago, Alexander Hamilton, writing in the Federalist (Number 78, June 14, 1788) noted the fragility of our third branch of government, whose power rests completely on public respect for its judgment:

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. [Yet lacking sword or purse, the judiciary] is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs. If he does, he’ll do whatever he can to avoid another 5-4 split on the upcoming decision over the constitutionality of the Obama healthcare law.

My guess is he’ll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law’s constitutionality, relying primarily on an opinion by Judge Laurence Silberman of the Court of Appeals for the District of Columbia — a Republican appointee with impeccable conservative credentials, who found the law to be constitutional.

Cross-posted from Robert Reich’s blog.

Comments to “Why the public’s growing disdain for the Supreme Court may help Obamacare

  1. If the Supreme Court rules the healthcare mandate unconstitutional, the flaw is easily overcome by instituting a health insurance fee schedule similar to whole life insurance fees, namely if someone maintains the insurance throughout their adult life prior to medicare eligibility at age 65 they will enjoy a low fixed premium. But conversely, if they procrastinate until illness strikes as they approach their sixties, the premiums can be set to prorate the cost of what they would have paid spread over a lifetime into concentrated offsetting high premiums in the few years they choose to enroll. Simply establish the principle that health insurance will have the same total lifetime cost for everyone who enrolls and that lifetime cost gets prorated over how some ever many or few years the individual elects to be enrolled before age 65. Thus no one will evade the equalized cost of health care without running the risk of major illness and bankruptcy before age 65.

    Such an adjustment to health insurance premium schedules requiring the same lifetime total to be paid by everyone regardless of the number of years enrolled, would make mandatory enrollment unnecessary, would eliminate the free rider problem, and would provide a rational incentive for everyone to participate without government coercion.

    Suggested campaign slogan for the President: “OBAMA HOOD CONFRONTS THE SHERIFF OF ROMNEYHAM”

  2. I find it interesting, but not unexpected, that Mr. Reich would have the time to find a Gingrich quote regarding a misunderstanding of the role of the Supreme Court, while overlooking the much more recent statement from our President: “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

    My understanding is that the concept of judicial review was established long ago under Marbury v. Madison.

    “Strong majority.” Really? It passed the House 219 to 212 (when the Democrats really did have a strong majority)and the Senate (pre-Scott Brown) with just 60 votes (remember the “Corn-husker kickback?).

    It would be nice to, at least occasionally, see something on the Berkeley Blog that showed evidence of political impartiality.

  3. “All this is deeply dangerous for the Court, and for our system of government.”

    And ramming a 906 page bill through Congress–that many members admitted they had not read–is not even more dangerous?

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