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The Day after Barnette v. Sibelius

By Jack M. Balkin

I agree with every word of Mark's post: It really does boil down to whether the Conservative Majority would dare to strike down the most important domestic social policy legislation in the past forty years, which, like the Civil Rights Act of 1964, would have passed only after vicious filibusters. But let's assume they do. Then what?

Bush v. Gore is an interesting evocation, since the one thing we know for sure is that Al Gore rolled over and played dead on December 13, proclaiming his duty to accept, without further protest, the decision of the Court, whatever its intellectual merits. He therefore provided no leadership for anyone who might have wished to engage in serious protest beyond signing angry ads. So, possibility one is that Barack Obama, the former University of Chicago professor, says "I really regret that the Court came to the decision it did, but we are a country that believes in 'the rule of law,' which means that five justices get the final say on what the Constitution means, whatever the rest of us think of their decision. So, until those in the majority have the courtesy to resign or die--and assuming that the Republicans will allow me to place justices more sympathetic to my own constitutional vision on the Court--I will just have to accept the fact that health reform is off the table, given that no other bill is likely to survive the Senate (which, incidentally, is also intellectually indefensible, but that's as irrelevant as what I think of the Supreme Court's decision). The Constitution is indeed whatever the Supreme Court says it is, so let's move on...."

But there are, of course, other possibilities. Perhaps the President would summon up the emotional energy to denounce the decision and to suggest that there is no reason that the country must be in thrall to a group of five "willful men" (since I assume that Ginsburg and Sotomayor will be in dissent against any such decision), anymore, incidentally, than we should continue to be in thrall to an almost terminally dysfunctional Senate. Therefore, he will devote his energies and political skills to a debate about structural fundamentals, beginning with the Supreme Court--should it be packed, should it require a supermajority to invalidate federal legislation, etc.) and moving on to the Senate. Indeed, he will suggest that the use of the veto power on policy (instead of constitutional) grounds is itself an affront to 21st century democracy, so that he would himself be willing to support that diminution in presidential power as part of a grand bargain by which the Senate is transformed into an institution that makes sense for our present world. This is obviously unlikely, but if one is looking for silver linings in a Supreme Court invalidation of the legislation, this would certainly be it for me.

It is not surprising that my friend Randy Barnett supports such drastic judicial intervention, since he has no regard at all for the notion of "judicial restraint." His impressive corpus of work, the best defense of a basically libertarian Constitution currently available, calls on courts and judges to be far more interventionist than has been the case for almost a century. But I am more than curious about the wing of conservatives who have embraced "judicial restraint." Consider in this context the savage criticisms by Richard Posner and J. Harvie Wilkinson of the Heller opinion as activism run riot (a view that I do not necessarily subscribe to, even though I find the Scalia opinion itself intellectually indefensible). Will they really suppport such a de facto coup?

A final question: Where would Randy advise his clients to file the original suit, since it might be embarrassing if the Court was faced with a district and a unanimous circuit court opinion finding no problem with the legislation. So what's the best forum to shop? Concomitantly, what is to stop proponents of the legislation from initiating the litigation, seeking a declaratory judgment that they will be violating no one's rights in requiring proof of insurance? Or will the final legislation direct that any litigation take place in DC (and what is the current likely split on the DC circuit with regard to such arguments)?

Full post as published by Balkinization on January 03, 2010 (boomark / email).