THE BLOG
07/16/2010 04:36 pm ET Updated May 25, 2011

Who's Ahead in the War Over the Courts; After Kagan's Hearing and the First Court Skirmish Over Health Reform?

Poised to report out Elena Kagan's nomination to the Supreme Court, Senate Judiciary Committee Democrats no doubt feel pleased, having used her confirmation hearing to turn the tables on Republicans, and brand the Supreme Court's conservative justices as pro-corporate "activists." With this new approach, they have clearly seized the attention of media observers, who have widely reported that, on "activist judges," the parties have "switched sides."

What is not so clear is which side is ahead. Having rewritten the terms of battle, have the Democrats gained ground in the war over the courts?

For their part, the Republicans also used Kagan's hearing to do over their playbook. The new Republican line, which first sprouted in late 2009 as enactment of comprehensive health reform topped the horizon, is unashamedly activist; politicians who for decades decried judges who "legislate from the bench" now put judicial legislating, or more precisely, judicial repealing, at the top of their wish-list. As framed by the opening statement of ranking Republican Committee member Jeff Sessions of Alabama, "Americans want a judge who will be a check on government overreach, not a rubber-stamp." Texas Republican, John Cornyn, endorsed nothing less than replacing the Constitution as it has been interpreted since the New Deal, and restoring a very different "framers' Constitution," in which "the Supreme Court has an important role in limiting the reach of the Congress." Oklahoma's Tom Coburn railed at "the courts," for not doing "their job in limiting our ability to go outside of original intent on what the commerce clause was supposed to be." None too subtly, the Republicans specifically targeted the health reform law, and its allegedly "unprecedented" requirement that most Americans carry health insurance or pay a penalty -- a prelude, Coburn warned, for mandates to "eat three fruits and three vegetables a day."

Other than a sentence in Judiciary Committee Chair Patrick Leahy's prepared opening statement -- unreported by the press -- the Democrats offered no counterpoint to the Republicans' plea for judges to shrink Congressional authority and junk health reform. Instead, the Democrats bore down on a different, more subtle strain of activism practiced by the Rehnquist and Roberts courts, generally below the radar of the press and public: tortured interpretations of statutory fine print that gut protections for consumers, employees, investors, retirees, or the environment. As they move the nomination to the Senate floor, Democrats certainly should keep up their populist critique of the Court's evisceration of "pocket-book" regulatory laws. But if the Republicans' new mantra goes unanswered, their vision of a tough-on-Congress federal judiciary could acquire political traction faster than the Democrats' tough-on-business vision. To begin with, their new rap could play well in Peoria. Polls indicate that bank bailouts and large deficits may, at least for the moment, have made anxiety about an "out of control" federal government more widespread than fear of corporate bullying.

Moreover, Republicans are not merely talking. They have taken action with the lawsuits filed by 21 Republican state attorneys general and governors challenging the health reform law. As I recently noted, the legal theories behind these claims could, if accepted by the Supreme Court, shatter the constitutional foundations of landmark safety net programs like Social Security and Medicare, and historic civil rights and environmental statutes. Republican senators questioning Kagan plainly grasped, and did not disavow, such radical outcomes.

Finally, the Right is well ahead in getting its message out and down to the grass roots. Since before and, especially, after the Republican AGs' suits were filed in late March, tea-partiers, Fox News, the Wall Street Journal, columnists like George Will, Heritage, CATO, and other think tanks, Republican party organs and leaders have been pumping out the attack lines brandished by Judiciary Committee Republicans during the Kagan hearing. In contrast, health reform supporters have pitched their arguments against the lawsuits in comparatively legalistic terms, and to comparatively elite audiences, in op eds by academic experts and in actual litigation briefs by the Department of Justice and other parties.

Increasingly, as the court cases generate court hearings and especially, judges' decisions, they will drive political debate about the lawfulness of health reform and, more broadly, about the parties' competing agendas for the federal judiciary. But if the Republicans' message points continue to dominate media circuits, that is bound to influence judges' perceptions along with the rest of the public, and possibly embolden some right-leaning judges to subordinate precedent to their policy preferences.

Already, on July 1, the fourth day of Kagan's hearing, traces of this feedback loop effect may have appeared 100 miles to the South in a Richmond, Virginia, court room. That morning, Federal District Judge Henry E. Hudson, a George W. Bush appointee, hosted the first open court confrontation between health reform challengers and opponents, in an oral argument on the Justice Department's motion to dismiss Virginia Attorney General Kenneth Cuccinelli's solo suit challenging the law's individual minimum insurance coverage requirement. Judge Hudson presided over the argument in an impeccably professional and even-handed manner. But toward the end of the Justice Department's presentation, he posed pointed questions that could reflect implicit affinity for the logic behind the sound bites Republican senators vented in the Senate Judiciary Committee's hearing room. The judge asked the Department to provide an example of a federal law or decision requiring an individual to buy an item on the private market. And he asked whether the Government could articulate a limiting principle that would bar a subsequent decision upholding mandatory health insurance from being extended to require health club subscriptions or physical exams. This "health club subscription" bogey hypothetical was not mentioned in Virginia's court filings, but it pops up often in op eds and internet postings attacking the individual mandate, some of which were quoted in amicus curiae (friend of the court) briefs supporting Virginia's suit.

Judge Hudson's questions respond to the opponents' core claim -- that mandating the purchase of health coverage bumps up against what is, or should be, a categorical fence around Congress' power to regulate commerce. Indeed, he observed that the health reform challenges "will at some point in time define the outer boundaries" federal regulatory authority. But no such categorical limitation figures in the pragmatic, effects-based approach the Supreme Court has since 1937 used to delimit the commerce power. The only thing that counts is whether, as a practical matter, a given requirement is necessary to remedy substantial adverse effects on interstate commerce, or to enable a valid regulatory scheme to work. Under that type of reasoning, Congress' decision to ground universal health coverage in assured universal buy-in is unassailable, not really a close case at all.

For his part, the Department's lawyer, Deputy Assistant Attorney General, Ian Gershengorn, made that pragmatic argument loud and clear. Repeatedly, he stressed that requiring substantially all Americans to carry insurance keeps uninsured individuals from gaming the system and shifting $43 billion annually to other health care consumers, providers, and taxpayers. And of course, Judge Hudson's edgy questions do not by any means necessarily foreshadow rejection of these arguments in his decision. The judge could simply have been putting the Department through its paces.

In all events, Judge Hudson's views will soon be clarified, as he promised a decision by the end of July. However this first court skirmish turns out, the ultimate outcome of the newly intensified multi-front war over the courts will list rightward, if conservatives false verities continue to dominate media coverage and public discourse. Ultimately, such an imbalance will skew the debate -- not only in the court of public opinion, but also in courts of law as well.