Jeffrey Tobin on the Supreme Court and the Affordable Care Act:
As the Justices have said repeatedly, the courts should overrule the work of Congress only on the rarest occasions. “Conclusory second-guessing of difficult legislative decisions,” Chief Justice William Rehnquist once observed, “is not an attractive way for federal courts to engage in judicial review.” In recent years, the Justices have intervened in these matters solely to protect the rights of minorities shut out of the legislative process. (Insurance companies, though they are few in number, do not count as a “minority.”) Now, instead, the Supreme Court acts as a sort of supra-legislature, dismissing laws that conflict with its own political agenda. This was most evident in the 2010 case Citizens United v. Federal Election Commission, when the five-Justice majority eviscerated the McCain-Feingold campaign-finance law (not to mention several of its own precedents), because Congress showed insufficiently tender regard for the free-speech rights of corporations. The question now is whether those same five Justices will rewrite—or erase—the health-care law on which Barack Obama has staked his Presidency.
It’s tempting to analyze the case in the context of election-year politics, to game out how Obama might be helped or hurt by the Court’s eventual decision. (Thumbs down on the act discredits the President with moderates—or, maybe, mobilizes his base. Thumbs up, maybe, does the opposite.) But the decision is a great deal more important than its immediate political aftermath. It’s about what the government can do, not just who runs it. If the Court acts in line with the sentiments expressed by the conservatives last week, it could curtail the policymaking options of Congress for a generation. An adverse decision on the Affordable Care Act could even jeopardize the prospects for conservative legislative priorities, like health-insurance vouchers or private retirement accounts in lieu of Social Security. It is simply not the Supreme Court’s business to be making these kinds of judgments. The awesome, and final, powers of the Justices are best exercised sparingly and with restraint. Their normal burdens of interpreting laws are heavy enough. No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either.
