Jeff Rosen has a new opinion piece claiming that the Chief Justice Roberts must decide what kind of conservative he wants to be – a traditionalist who favors judicial restraint or a radical who favors the constitutional in exile. There is so much wrong with this false alternative – ranging from the notion of “the constitution in exile,” the idea that originalists are in favor of judicial restraint rather than a fair reading of the Constitution, that striking down an unprecedented piece of legislation would be radical, or that a 5-4 decision is somehow only the responsibility of the 5 majority justices – that it is hard to know where to start. Rather than examine his argument overall, I just want to focus on one aspect of it: the effect on the Court if they strike down the law.
Rosen ends his argument with the following warning for Chief Justice Roberts:
This, then, is John Roberts’s moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts Court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure. But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance. This is the era that Judge Brown and Randy Barnett yearn to revive: a time when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn’t favor. We’ve seen this script play out before, and it didn’t end well for the Court.
(emphasis added). The suggestion here is that striking down the health care law would lead to a significant attack on the Supreme Court by the political branches and the people similar to that which occurred during the New Deal.
But this comparison with the New Deal is not well taken. The Obama Administration and the health care law do not have anything like the popularity that the Roosevelt Administration and the signature items of the New Deal had. During the New Deal, the Roosevelt Administration and the Democrats were a political juggernaut as compared to the present day anemic Obama Administration. As I show in this paper, Roosevelt and the Democrats won landslide after landslide, in the Presidential election of 1932, in the midterms of 1934, and in the President election of 1936. Obama and the Democrats, however, took power in 2008 (after the Democrats won significant victories in 2006), but then were walloped in the midterm elections of 2010, losing 63 seats in the House. Moreover, a significant portion of those losses were due to the passage on party line votes of the unpopular health care law. By contrast, much of President Roosevelt’s agenda was passed with enormous majorities, including with significant Republican support (small as it was).
Even if President Obama is reelected – a big if, I would add – the House is very unlikely to turn back to the Democrats. And the Senate will be closely divided and deadlocked, whichever party has the majority. Thus, at worst, the Supreme Court need not fear any legislation being passed that would attack them. Nor need the Court fear the criticisms of liberal Democrats about a very unpopular health care law. Moreover, if President Obama is defeated and the Republicans at least keep the House, then there will be a strong coalition of political actors supporting the Supreme Court’s decision.
The bottom line here is that the Obama Administration and the health care law are not the New Deal and Social Security, even though liberals keep imagining that they are. If the Supreme Court decides to strike down the law as an unprecedented exercise of federal power, the Court need not fear a repeat of the New Deal.