The Supreme Court will not overturn health care reform. At least if the five-justice conservative majority that brought the country Citizens United and Bush v. Gore can be stymied by the possibility of being the first court in over 75 years to strike down a sitting president's signature domestic achievement.
Congress' party-line passage of the Affordable Care Act two years ago triggered unceasing speculation over the prospect of a similarly partisan end-game at the Supreme Court. And given the litany of sharply divided conservative victories in the court's most politically charged cases, casual court watchers would not be unreasonable to expect the five Republican appointees to strike down the Affordable Care Act's individual health insurance mandate and perhaps the entire law with it.
Reasonable expectations, however, can be wrong. The battle this time is likely to be an intra-conservative conflict between the economic libertarianism underlying the mandate's challenge and the traditional principles of judicial restraint that have defined right-wing jurisprudence for more than a half-century.
The Affordable Care Act constitutional saga opens its final chapter on March 26, when the court takes to the bench for six hours of oral arguments over three days. The justices will finally offer scraps of their thinking, through questions and comments to the lawyers before them, to a public hungry for hints of whether Congress exceeded its commerce clause power by requiring virtually all Americans to purchase minimum health care coverage or pay a tax penalty.
Justice Clarence Thomas, whose six years of silence at oral arguments suggest that he's unlikely to pipe up in health care cases, has long made clear his allegiance to the libertarian camp. He has called time and again for a return to a narrow reading of Congress' power to regulate interstate commerce that a deeply conservative Supreme Court in the mid-1930s used to provoke a constitutional crisis by invalidating much of President Franklin Roosevelt's first slate of New Deal legislation.
But it is far from certain that his four conservative colleagues -- Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito -- will join Thomas to repeat that repudiated era of court history.
Since FDR prevailed over the court in 1937, there has been a mainstream consensus on the left and the right that Congress has the broad power to regulate any conduct that, in the aggregate, substantially affects interstate commerce. At its most expansive, this has meant, as the court decided in 1942's Wickard v. Filburn, that Congress can forbid a farmer from growing excess wheat for personal consumption.
From the 1950s through the early 1970s, the court took a decidedly left turn on issues including school prayer, civil rights, criminal procedure and abortion rights. Most conservative lawyers who came of age during the second half of the 20th century were therefore more concerned with correcting the "excesses" of the court's liberalism than with using the judiciary to curb Congress' regulatory reach, said Eric Claeys, a professor at George Mason University School of Law.
"It is crucial to remember that Roberts and Alito both went to law school in the 1970s and both did significant service in the Reagan administration," said Claeys, who last summer wrote "Obamacare and the Limits of Judicial Conservatism" in National Affairs. In Roberts' and Alito's milieu, liberals were the judicial activists. Conservatives practiced restraint.
Justice Scalia championed judicial restraint as a conservative value in his posts as a law professor, government lawyer and federal judge. Debating a prominent libertarian law professor in 1984, then-Judge Scalia described calls for activism on economic rights as a "moment of truth for many conservatives who have been criticizing the courts in recent years. They must decide whether they really believe, as they have been saying, that the courts are doing too much, or whether they are actually nursing only the less principled grievance that the courts have not been doing what they want."
On the bench, Scalia has had an ambivalent relationship with the commerce clause. He, along with Justice Kennedy, joined the court's conservative majority in the only two instances since 1936 that the court struck down an act of Congress on interstate commerce grounds. In 1995, they voted to invalidate the Gun-Free School Zones Act as insufficiently related to commercial conduct and did the same in 2000 to a portion of the Violence Against Women Act.
Nevertheless, in neither of those cases did Scalia or Kennedy question Congress' power to regulate what he saw as bona fide commercial conduct. Reaffirming the Filburn decision in 2005, they joined with the court's liberals to find that federal laws regulating the national market for illicit drugs permitted Congress to prevent a woman from growing her personal crop of state-legalized medical marijuana.
The 26 states and several private parties challenging the Affordable Care Act concede that health care is a national market, but say that Congress cannot force someone to partake in that market by mandating the purchase of health insurance.
Neal Katyal, the former acting U.S. solicitor general, said in an interview with HuffPost that the government responds to this argument by saying that "everyone consumes health care in this country."
"Right now 50 million people don't have insurance, so it means that you and I essentially are paying for them," said Katyal, who defended the law in front of three appeals courts. "Congress said, 'Let's fix that system and make it so that everyone has a certain amount of insurance.'"
Next week's health care cases come from the U.S. Court of Appeals for the 11th Circuit, which did not buy the government's argument. But high-profile conservative judges on two other appeals courts did. Sixth Circuit Judge Jeffrey Sutton, a former Scalia law clerk, was the first among all federal judges to cross party lines to uphold the mandate. D.C. Circuit Judge Laurence Silberman, a Reagan-appointed greybeard of the conservative legal movement, did the same.
The challengers' "view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of" the cramped pre-1937 view of economic regulation, wrote Silberman. That reading "has no foundation in the Commerce Clause," he concluded.
Georgetown Law professor Randy Barnett, one of the intellectual architects of the health care law challenge and lawyer for the private plaintiffs, told HuffPost that these decisions "have to do with what [the judges] think the role is as a lower court judge: following Supreme Court precedent." That responsibility, Barnett noted, is "a constraint that the Supreme Court is not as under as much as lower court judges are."
But Barnett, unlike Sutton and Silberman, finds the health insurance mandate entirely unprecedented. And when there is no precedent, there is no need for judicial restraint. "I'm only in favor of judicial restraint insofar as it means following the Constitution, and I don't know anybody who thinks the court should not strike down unconstitutional laws, on the left or right."
If only the calculus were that simple. The court's conservative bloc has had no problem recently striking down or calling into question state and federal laws big and small as violations of the First, Second and 10th Amendments. But invalidating a sitting president's signature legislative victory on commerce clause grounds is freighted with deeply unpleasant institutional memories both for the court and the conservative legal movement. If the individual mandate is as unpopular among Americans as public opinion polls report, then the court can let the democratic process play out and, by exercising restraint, collect political capital for the battles ahead on affirmative action, campaign finance, the Voting Rights Act and perhaps even abortion that really matter to the court's majority.