2012 puts us at an important moment for remaking the relations among our parties, the courts and the public. That's because Democrats and Republicans are rethinking whether the courts are political foes or allies -- and the pending health care decision could push them over the edge.
This month, the Supreme Court will issue a decision in the highly anticipated case Florida v. Health and Human Services. If the Affordable Care Act is upheld, the Court's ruling will rekindle Republican anger towards the courts. Alternatively, if the ACA is struck down, we may finally see Democrats turn on a judiciary that no longer represents a reliable ally for progressive causes. In fact, what seemed implausible a decade ago now appears within reach: 2012 may be remembered as the year where liberals lost their signature domestic policy, and their faith in the judiciary as well.
There is plenty of evidence that the two major parties' attitudes toward judges and judicial power are changing, and that the outcome of the health care litigation will give the judiciary new political friends and enemies.
Fewer than ten years ago, criticisms of the state and federal judiciary were numerous and prominent -- and almost always from Republicans and conservatives. From 2003 to 2007, a Republican-controlled Congress introduced dozens of proposals to restrict the powers of courts, and government leaders, like House Majority Leader Tom DeLay and former President Bush, roundly condemned judicial "activists" who "legislated from the bench." The G.O.P. was frustrated by the judiciary's failure to produce consistently conservative rulings on such issues as abortion and gay rights, despite Republican success in other areas such as economic (de)regulation.
Typical were the 2004 comments of Todd Akin, a House Republican from Missouri, who complained about a lower court decision that the First Amendment prevented reference to "God" in school-mandated recitations of the Pledge of Allegiance. As Rep. Akin objected,
If we allow activist judges to start creating law... we have emasculated the very heart of what America has always been about... This is quite simply a matter of judges turning the First Amendment upside down.
Now compare Congressman Akin's remarks to the recent comments of U.S. Senator Charles Schumer in response to Citizens United v. FEC, the case in which the Court held that corporations and unions can spend unlimited sums on "independent" campaign ads. Schumer, the third-ranking Democrat in the US Senate, warned that at "a time when people are feeling estranged from their democracy" the Citizens United decision was "poisonous." These two statements, separated by just six years, illustrate today's roiled political waters.
Moreover, members of the G.O.P. recently have been going out of their way to praise courts, backing away from their historic skepticism of judicial power. Speaker of the House John Boehner, for example, lauded Citizens United by calling it "a big win for the First Amendment and a step in the right direction" for the country.
At the same time, liberals, who have tended to be stalwart supporters of independent courts since major civil rights and civil liberties decisions of the 1950s and '60s, are rethinking this position. Democrats in Congress have joined Sen. Schumer in criticizing individual decisions and supporting laws to check court power. President Obama famously chastised the Court in his 2010 State of the Union Address and has, more recently, cautioned (some say threatened) the Court not to take the "unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
In 2012, Republicans are more likely to praise judges, while Democrats are more inclined to criticize them than in the recent past. This is striking given how recently Democrats rallied to the judiciary in the face of G.O.P. anger over decisions on such matters as the death penalty and gay rights.
The obvious explanation? You guessed it: hope for, as well as fear and loathing of, the health care case. Republicans, especially those identifying themselves as "Tea Party" members, have lauded lower court decisions striking down Obamacare, and have praised the Supreme Court in advance for what they hope will be a favorable decision. Democrats, on the other hand, have fretted about the health care case, while also decrying court decisions on campaign finance, the environment, and economic regulation.
A clear shift has not yet taken place in how the two major parties view the courts. But we are at a moment of instability, where we can no longer count on Republican skepticism and Democratic support for judges -- strong features of our political landscape over the past four decades.
Before we get to the election decision of 2012, we face the Supreme Court decisions of 2012, including its ruling on health care. How the Court handles this case will shape the dynamics of the presidential race, the Obama legacy, and whether we face a transformation in how our political parties respond to an American court system that is widely regarded as the most powerful judiciary in the world.