THE BLOG
03/02/2012 05:13 pm ET Updated May 02, 2012

Supreme Court Review of Health Reform: Will History Repeat Itself?

Ever since our country's founding, the U.S. Supreme Court has had to decide critical issues at the heart of potent political disputes. Lessons from some of the most famous Supreme Court moments in history can shed light on how the present Court might deal with the current legal attacks on America's new health reform law, the Affordable Care Act (ACA), often called "Obamacare."

The Disputed Power of Judicial Review (Marbury v. Madison)

Just hours before Thomas Jefferson took office as President in 1801, his predecessor, John Adams, made several last-minute appointments, including naming William Marbury as Justice of the Peace. Jefferson narrowly defeated Adams in 1800, and deeply disagreed with him over the political structure and power of government, disputing even the authority of courts to strike down laws as unconstitutional.

Jefferson's brand-new Secretary of State, James Madison, refused to deliver the judicial appointment papers to Marbury, without which Marbury could not be judge, leading to one of the most important Supreme Court cases in history.

Chief Justice John Marshall, an Adams appointee himself, wrote the historic 1803 Marbury vs. Madison decision. In it, he derided Jefferson's Administration for not delivering Marbury's papers, but with one ingenious stroke, bowed to Jeffersonian political demands by using the disputed power of judicial review. The Court's decision ordered Marbury's suit dismissed purely on procedural grounds, because the statute that purported to allow Marbury to sue was stricken as unconstitutional.

Marbury v. Madison thus erected as precedent the judiciary's most significant power -- to strike or uphold legislative acts. Yet, that power was only established in retreat from political confrontation.

Slave Rights: Where the Court Had No Fear Treading, But Should Have (The Dred Scott case)

Dred Scott, a slave, sued for his freedom in 1857. His master took him to territory considered "free" in Congress' Missouri Compromise of 1820, but when his master's widow living in the slave state of Missouri refused to grant him freedom, he sued. The lower court held that since he had lived in "free" territory, he should be freed, but his case was reversed by Missouri's highest court. He then appealed to the U.S. Supreme Court.

In a Court dominated by southern-oriented Justices, Scott lost. The Dred Scott decision denied slaves not only the right to sue, but struck down the Missouri Compromise, depriving Congress of power to prohibit slavery in "free" territories and denying African Americans citizenship rights in any state, including northern ones where many already had such rights.

Dred Scott stands as the epitome of judicial overreach in politically volatile times. By 1857, the entire nation was keenly aware of the country's serious divide over slavery. Yet, in apparent obliviousness to the explosive political instability, seven Justices fearlessly charged into the divide, utterly failing to follow judicial restraint, and unwittingly playing a role in the soon-to-follow firestorm of the Civil War.

Roosevelt's New Deal and the 1937 Court-Packing Threat

By 1936, President Franklin D. Roosevelt's Democratic majority in Congress had enacted multiple bills to transform America's economy in the wake of the Great Depression. But, a majority of conservative Justices on the Supreme Court loomed as an obstacle, overturning a record number of New Deal laws from 1933-36. Frustrated by what he believed were out-of-touch conservative Justices bent on thwarting the New Deal, Roosevelt determined he had to change the makeup of the Court.

The Constitution does not fix the number of Justices on the Supreme Court; Congress does, and set its number at 9. The President, of course, makes appointments to the Court with the "advise and consent" of the Senate. But, by 1937, Roosevelt concluded the only way the New Deal would survive was to find a way to appoint more Justices to the bench, to counter the elderly conservative ones unwilling to retire.

So, he urged Congress to increase the Court's number from 9 to 15 -- one additional seat for each unretired Justice over 70 years -- using the rationale that the caseload was too heavy for such elderly judges. Since Roosevelt would fill each newly-created seat, his plan became known as the "court packing" threat.

It remained only a threat because Congress never enacted his plan. But everyone knew why he proposed it, and the public's once high esteem for the Court began to ebb. In 1937, in recognition of this turn in political climate, the Court did an about-face and started sustaining the constitutionality of New Deal legislation. Soon thereafter, the elderly Justices began retiring, giving Roosevelt his long-awaited chance to fill the Court's vacancies.

This time period stands as a major turning point in legal history, because although the threat faded, it did refocus the Court on protecting individual rights and sustaining congressional acts for the common good. The Court's turnabout also demonstrates a realistic appreciation of the tenuousness of judicial authority in the midst of national social and economic upheaval.

The History Lesson for Supreme Court Review of Obamacare

In just two words, the lessons from this brief Supreme Court history teach this: judicial restraint.

As Chief Justice Roberts famously testified in his confirmation hearing, the Supreme Court's function is to call "balls and strikes." So, some might ask, which is Obamacare: a strike or ball? Is the individual mandate constitutional or not?

Not so fast. As I pointed out in "Legal Forecast: The Supreme Court Won't Strike Health Reform -- Part II," the Court cannot even consider the mandate's constitutionality until it first decides its own power to make the call.

This is where history's lessons provide value:

  • Marbury v. Madison struck a blow for judicial independence. Justice Marshall granted Jefferson what he politically demanded, but did so using the disputed power of judicial review.
  • Dred Scott teaches the imperative of restraint. The Court is not elected, and not representative of popular views. The Court's sole function is to construe the Constitution and laws, and apply them in a case or controversy. Judicial review does not equate to judicial supremacy: something that Court forgot in this case, which helped ignite the fires of war.
  • Roosevelt's court-packing threat reinforces the restraint lesson. Even a Court blinded to political volatility in the midst of social and economic upheaval could not, without endangering its institutional integrity, disregard judicial restraint. Conservative Justices bent on defeating the New Deal made a switch in time to save the Court's integrity and reputation.

Today, the Anti-Injunction Act (AIA) may be just the vehicle for the Roberts Court to exercise judicial restraint in review of Obamacare, because, if interpreted literally, it bars review of the individual mandate until at least 2015. This is because the individual mandate's penalty will be assessed and collected like a "tax," and the AIA prevents challenge to any tax until someone pays it, and sues for refund. And, no one will pay that penalty until 2015.

The AIA thus provides an "out" for the Court to avoid having to make an ill-timed decision on the constitutionality of Obamacare in the middle of 2012's election cycle, while many candidates are running against the law.

While most of the Court's conservatives might not like the mandate, some even perhaps believing it unconstitutional, they are typically sticklers for correctly calling a strike or ball when it concerns the Court's jurisdiction.

If they don't consider the AIA a bar to their jurisdiction to review the mandate until 2015, then they will have to write a meticulously narrow or very creative decision that will likely stand as poor precedent for future cases involving attacks on payments to the government that look and walk like a tax.

So, Americans shouldn't be surprised if the Supreme Court refuses to decide the constitutionality of health reform's individual mandate! Obamacare may be squarely in the AIA's "strike zone," and thus barred, on a technicality, from judicial review (at least for now).

If anyone forgets these lessons from history, it's worth noting the famous saying, "Those who cannot remember the past are condemned to repeat it."

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