On Sunday's New York Times, Adam Liptak asked, rather provocatively, whether the U.S. Supreme Court would lose legitimacy if it struck down the health care law. I think the answer could not be clearer. If the Court's legitimacy did not suffer in the wake of Bush v. Gore, the health care law won't do it either. So much is clear.
But this is not what makes the health care litigation interesting and worthy of attention.
Think instead about Liptak's question from a slightly different angle. In his view, if the Court strikes down the health care law on a partisan, 5-4 ruling, "the public perception of the Court may be altered." The next obvious question is why this is so. What makes a 5-4 decision in this future case different from all other 5-4 decisions we have seen in the past? A quick review of civil rights cases from the Burger Court onward (thanks to the U.S. Supreme Court database) uncovers a remarkable string of 5-4 decisions. To name a few: Wards Cove Packing v. Atonio; Martin v. Wilks; Patterson v. McLean Credit Union; Missouri v. Jenkins; Metro Broadcasting v. FCC; Shaw v. Reno; Holder v. Hall; Miller v. Johnson; Adarand v. Pena; Shaw v. Hunt; Bush v. Vera; Abrams v. Johnson; Lawyer v. Department of Justice; both installments of Reno v. Bossier Parrish; Boy Scourts v. Dale; Bush v. Gore; Easley v. Cromartie; Nguyen v. INS; Georgia v. Ashcroft; LULAC v. Perry; Leadbetter v. Goodyear; Parents Concerned; Ricci v. Destefano. This list includes some of the most troubling and badly reasoned cases of the last generation, cases that are clearly driven by the conservative justices' policy views and their desire to see these views reflected in federal law.
To Liptak, the health care challenge is different because the Court as it stands today "represents something the nation has not seen in more than half a century: a seemingly perfect alignment between justices' partisan affiliation and their ideological predispositions." That is, unlike years past, when Stevens appears to have drifted to the left after his appointment by Ford, and Brennan and Warren drifted to the left after their appointments by Eisenhower, there is no similar "wildcard" today. The justices "appear to line up along the ideological spectrum in partisan lockstep." Liptak doesn't tell us explicitly, but I think the point is that this will only reinforce the notion that the justices will decide the case on purely ideological grounds. This is why, early in the piece, he writes that "the suspicion that something political is afoot is unlikely to go away." Also, he closes the opinion, cleverly if not a bit too cryptically, with the following: "But one thing is clear. Though most people are realistic enough to accept that there is some political element to constitutional adjudication, at least at the margin, no one wants to see the legal ledger balance out to the penny."
I am not sure exactly what this new reality on the Court proves. One thing it does prove for sure is that Presidents are getting better at choosing justices that will reflect their own constitutional principles. See, in this vein, the debacle of the Harriet Miers nomination, an instance where the base would not stand for the uncertainty inherent to such a nomination. But other than that, it does not prove much more. Back in 1957, Robert Dahl could write that Presidents appointed justices who reflected their values through their votes on every case. This was the reason why, to Dahl, the Court was seldom out of step with majority sentiment.
The better question is why Liptak seems unwilling to call a spade a spade. Why not just call the Court what it is, a political institution driven by the justices own ideologies and partisan preferences? Could we read any of the above cases, for example, and conclude otherwise? This is particularly interesting in the case of Liptak because he has access to some of the leading legal minds of our generation. In the article, for example, he quotes Barry Friedman, Nate Persilly, and Lee Epstein. Surely he has heard these views before, the ones I am expressing here. Why, then, the reticence?
One answer is that he is simply imbued with the Court's accepted mythology, socialized in the Court's lore and its role as described in our civics books. There is no shame in that. A legal education is likely to do that to a person.
A related answer may be that Liptak in fact knows better, yet is trying through his influential space in the Times to do his part to sustain the myth. This makes me wonder: what is gained by sustaining the myth of the Court, and what would be lost by its demise? What happens, in other words, if the public gains access to what lies behind the wizard's curtains?
Probably nothing, I am aware. But I still wonder.