05/08/2012 03:09 pm ET Updated May 08, 2012

Health Care Case In Fantasy Court: What Would Honored Justices Say?

WASHINGTON -- Later this spring, retired Justice John Paul Stevens will become the ninth former member of the Supreme Court to receive the Presidential Medal of Freedom since President John F. Kennedy created the award in 1963. The honor comes as the current court crafts what likely will be a bitterly divided opinion in the health care case. In a sign of changed times on the nation's highest bench, the judicial cohort Stevens is joining would surely have upheld the constitutionality of Obamacare's individual mandate by a nearly unanimous vote.

Call it "fantasy Court." It comprises the nine justices whom presidents over the past half-century have selected for the nation's highest civilian honor. It also serves as a kind of unicorn pasture, a place where we can find Democratic and Republican appointees from not so long ago willingly agreeing to defer to Congress' broad power to remedy national problems.

"The mandate would have been upheld every moment from 1937 until 2009," observed University of Texas School of Law professor Lucas Powe, author of "The Supreme Court and the American Elite, 1789-2008." But in late 2009, a Heritage Foundation memorandum written by libertarian Georgetown Law professor Randy Barnett gave the first full airing to the argument that the Affordable Care Act's mandatory coverage provision exceeded Congress' power to regulate interstate commerce. After that, "it became part of Republican Party orthodoxy that Obamacare had to be unconstitutional," Powe said.

Whether the current court's conservative bloc -- otherwise known as its five Republican appointees -- had accepted that new orthodoxy was far from clear before the March oral arguments over the health care law. Several prominent conservative appellate judges voted to uphold the mandate, with two finding it squarely within the Supreme Court's commerce clause precedents set down in the late 1930s and early 1940s. Justice Stevens, speaking to HuffPost this past September, praised one of those judges, Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit, for keeping his policy views out of his constitutional analysis. "I would suspect my former colleagues to have the same approach to it," Stevens said, hinting at his belief that the conservative justices would exercise judicial restraint in their review of Congress' actions.

"Judge Sutton is wrong," lawyer Michael Carvin told the court when he argued for private plaintiffs challenging the mandate in March. The conservative justices, who showed considerable hostility to the federal government's position, did not question Carvin's assertion.

Felix Frankfurter, the first justice to receive the Presidential Medal of Freedom, would no doubt have differed with Carvin. Frankfurter arrived on the court in 1939 as a famous liberal scholar who preached deference to the political branches' judgment after years of a conservative Supreme Court's striking down progressive state and federal legislation. His aversion to activism ran so deeply that he refused to associate himself with a postwar judicial liberalism that increasingly meant striking down illiberal laws. "History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures," he wrote in 1951. By the time Frankfurter retired in 1962, conservatives had taken up his example of judicial restraint as their own guiding principle -- one they would stick to when the court later moved into matters ranging from the death penalty to reproductive rights.

Four subsequent medal winners -- Chief Justice Earl Warren and Justices William Brennan, Arthur Goldberg and Thurgood Marshall -- were key figures in the court's left turn during the 50s and 60s on issues such as criminal defendants' rights, free speech and desegregation. Yet the scope of government remained a non-issue so long as liberals supported the laws Congress passed and conservatives remained committed to judicial restraint. Under this consensus, the court unanimously upheld the 1964 Civil Rights Act's unprecedented ban on racial discrimination by "places of public accommodation," no matter how local the clientele, as a valid exercise of Congress' commerce power -- a result disputed today within the same Tea Party ranks calling Obamacare unconstitutional.

Of the nine justices awarded the Presidential Medal of Freedom, only Sandra Day O'Connor, an arch-moderate appointed by President Ronald Reagan in 1981 and honored by President Barack Obama in 2009, could have been counted on to vote against the mandate.

"I think O'Connor would very likely have voted to strike down the mandate based on her strong dissenting opinion in [a 2005 case upholding a federal ban on cultivating medical marijuana for personal consumption] and her staunch advocacy of judicial enforcement of limits to federal power in many other cases," said professor Ilya Somin of George Mason University School of Law in an email.

Somin, a regular contributor to the libertarian legal blog Volokh Conspiracy, has played a key role in mainstreaming the arguments against the mandate. He argued that it is a mistake to compare the current Supreme Court solely with the medal recipients, who operated in what he called "the highly aberrational period of the 1940s to the 1980s, when the conventional wisdom among legal elites was that Congress could do pretty much anything it wanted under the commerce clause."

"The overwhelming majority of justices appointed in the 18th, 19th, and early 20th centuries would have voted to strike down the mandate," Somin wrote, noting that the Supreme Court did not concede Congress' ability to regulate insurance sales until 1944. "The same goes for many of the justices appointed over the last 25 years, as the oral argument in the mandate case suggests."

O'Connor served alongside two more-conservative medal-receiving justices who possessed far less critical views on federal power. Justice Byron White, appointed by Kennedy in 1962, may have been one of two dissenters in Roe v. Wade, generally unfriendly to criminal defendants and unreceptive to gay rights, but "gave great weight to securing and preserving federal authority, especially Congress' authority," wrote Yale Law professor Kate Stith upon White's retirement in 1993. Chief Justice Warren Burger, appointed by President Richard Nixon in 1969, helped push Nixon's goals of rolling back the court's liberal decisions on law and order, school desegregation, and pornography, but he could not "be confused with a counterrevolutionary," said Kevin McMahon, author of "Nixon's Court" and a professor of political science at Connecticut's Trinity College.

Unlike his two predecessors as chief justice, the late William Rehnquist, who died in 2005, has yet to receive the Presidential Medal of Freedom. It was Rehnquist, along with his fellow Arizonan O'Connor and current Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, who put limits on the commerce clause for the first time since the late 1930s, striking down the Gun Free School Zones Act in 1995 and a provision of the Violence Against Women Act in 2000 as addressing non-economic problems that states were competent to handle themselves.

Professor Powe sees today's Roberts Court as much more of a threat to Congress' power than the Rehnquist Court ever was. "Does one really think that anyone was jeopardized by the Gun Free School Zones Act? How many states made it legal to go home and beat the s**t out of your wife?" he asked. Obamacare, in contrast, "is serious stuff," he said.

Given the health care law's reception at oral argument, Powe added, "We may never find out if it would have been a success or not."

Perhaps not in our real world. But health care reform will get its shot out in the unicorn pasture, where Justice Stevens, a now-mythical liberal Republican appointee, would vote with Justice Frankfurter, the New Deal Democrat whom Stevens once described as "by any measure a true judicial conservative."