Friday, March 30, 2012

Obamacare overturned in a 5-4 vote. Game over!



So, if the court does end up overturning it--partially or completely--in a 5-4 vote as projected by this team, will it affect the credibility, or even the legitimacy, of the Supreme Court?  But then (ht):
Who, after all, is going to lead the charge against the Court?  Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court?  The fraternity of elite liberal  lawyers who served as Supreme Court clerks, for whom undermining the Court’s legitimacy means undermining the value of their own prized credential?  Liberal constitutional law professors, who are as invested as anyone in the Court’s significance?  (It’s hard enough to get people to read one’s latest article on “A Kantian/Weberian Approach to the Fourth Amendment” when the Court is as important as it is now!)  Liberal activist groups and think-tankers, who still treasure the Court’s rulings on abortion, due process rights for terrorism suspects, term limits, and more, and who hope that a future Court will recognize a right to gay marriage?  Liberal Congressmen, when Congress’ popularity rating is well below the Court’s, and who have hardly shown themselves to be constitutional scholars? (Not to mention that journalists like Lithwick are on record suggesting that it’s “weird” for members of Congress to be considering the constitutionality of legislation.  “Isn’t it a court’s job to determine whether or not something is, in fact, constitutional?” wrote Lithwick.)
At most, a ruling against the ACA will have the same effect as Bush v. Gore or Citizens United, or Roe v. Wade and Boumediene for that matter; a fair amount of caterwauling, with the Court as an institution remaining unscathed.
I can't imagine any legitimacy issues even if the court overturns the entire act: most Americans don't ever seem to be bothered to understand that the court is the third leg of the government stool and, therefore, don't pay much attention to it anyway.  An overturning will merely translate to Obama's and the Democrats' electoral losses, and the Republicans look at enormous setbacks if the court ends upholding the law if both Kennedy and Roberts end up siding with liberal bloc.

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