By Alexander Bolton - 04/02/12 10:02 PM EDT
Democrats have waged a not-so-subtle pressure campaign on the Supreme Court in recent days by warning a ruling against the healthcare reform law would smash precedent and threaten popular social programs.
President Obama was the latest to weigh in when he declared Monday that a wide array of legal experts would be astonished if the court struck down part or all of his signature domestic initiative.
He said it would be “unprecedented” for the court to strike down the individual mandate, which requires the uninsured to buy health coverage or pay a penalty.
Nan Aron, president of the Alliance for Justice and a prominent advocate during Supreme Court confirmation battles, said Obama and Democrats have made it clear that they would fiercely criticize a ruling against the healthcare law.
“I do think the statements by some of the senators and the president are serving notice to the court that, frankly, if the court does overturn the law, in essence, the court will become a political football in the election,” Aron said.
“I wouldn’t have said that before of the president’s comments. By virtue of the fact that he spoke out, it does serve notice: Think twice before throwing out this baby. It will be viewed more as a political act,” she added.
Justices have shown in the recent past that they are not impervious to the president’s words and how they might influence public perception of the high court.
Justice Samuel Alito shook his head and mouthed the words “not true” when Obama criticized the court’s decision in the Citizens United case during his 2010 State of the Union address, and Aron noted that Chief Justice John Roberts has a reputation for being mindful of his legacy.
“We do know this is a justice who reads the press about himself. There have been reports about that,” Aron said.
Senior Democratic lawmakers have warned the court would upend the legal precedent that gives Congress the power to provide for the nation’s general welfare if it rules that the Constitution’s Commerce Clause does not allow for the mandate to have insurance.
“If they were to throw out the healthcare law, things like Medicare, Social Security, food-safety laws could be in jeopardy on the very same grounds,” Sen. Charles Schumer (N.Y.), the third-ranking Senate Democratic leader, said on NBC’s “Meet the Press” Sunday. “It would be a dramatic, 180-degree turn of the tradition of the Commerce Clause.”
Democrats have cited the words of conservative legal scholars and past Republican support for the individual mandate to bolster their argument.
Schumer and Senate Health Committee Chairman Tom Harkin (D-Iowa) have both quoted J. Harvie Wilkinson III, who was appointed by former President Ronald Reagan to the 4th Circuit Court of Appeals. Wilkinson said “the idea that Congress is constitutionally disabled” from regulating the healthcare market is a “heavy judicial lift.”
Schumer called Wilkinson the dean of conservative judges on the courts of appeal and has frequently reminded reporters that the Heritage Foundation, a conservative think tank, first proposed the idea of a health insurance mandate in 1993.
Harkin said, “the opponents of healthcare reform, the Affordable Care Act, are basing their arguments on politics rather than precedents.”
“This court can go no other way but to uphold the individual mandate the Congress has put into the individual mandate,” he said at a press conference Democrats held after the second day of oral arguments.
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) warned the court last week that a ruling against the healthcare reform law would have far-reaching consequences.
“I think it’s a clear-cut case. I think you have to stretch to say this is unconstitutional but Social Security, for example, or Medicare is constitutional,” Leahy said. “If you say this is unconstitutional, then you have to say Social Security and Medicare are also unconstitutional. I’m not sure the court is prepared to do that.”
Senate Republicans have taken a different tack. Senate Republican Leader Mitch McConnell (Ky.) has declined to predict how the court will rule.
Despite filing an amicus brief in the case, he has been relatively reticent about the legal merits of the case.
He said last week that if the court upheld the mandate, its interpretation of the Commerce Clause would be so broad as to make meaningless its constraint on federal power.
“What that leads to ultimately, we don’t know, but we know the suspense will be over in June,” he said.
McConnell says regardless of how the court rules, he is committed to making repeal of the law a high priority if Republicans capture control of the Senate.
Some legal experts, however, doubt the Democratic public-relations campaign will have much influence on Justice Anthony Kennedy, who is widely seen as the swing vote on the closely divided court.
“I don’t think they’ll have any impact. It’s possible they would have an adverse impact,” said Lanny Davis, who served as special counsel to former President Bill Clinton and is the principal at the law firm of Lanny J. Davis & Associates.
“The history of Justice Kennedy is quite independent and thoughtful and he’ll make the decision on the merits and not on political influences. I won’t say that about every justice, some of whom came out of the political world.”
Davis, a columnist for The Hill, said it is “perfectly legitimate” for justices to consider the political ramifications of their decisions.
He noted that then Chief Justice Earl Warren strove to unify his fellow justices behind a unanimous decision in Brown v. Board of Education of the City of Topeka, Kan., knowing the decision would have broad political impact and receive criticism. That decision struck down the “separate but equal” doctrine for racial segregation.
Last week’s hearing on the 2010 healthcare reform law was the most time the Supreme Court set aside for oral arguments since Brown v. Board of Education, according to Senate sources who reviewed the record.