The Supreme Court and the Health Care Law Decision: Judicial Victory, Political Defeat?

The Supreme Court takes up the constitutionality of the health care law today. I'm not a constitutional historian, so I can't speak definitively about its constitutionality (though the law strikes me as a reasonable use of the commerce clause, and to find otherwise would seem to me like a reactionary reversal of 80 years of constitutional history).

The politics of the decision seem likely to be interesting, no matter what the Court decides. Ever since it was signed into law by President Obama two years ago, Republican candidates have denounced it as unconstitutional and have pledged to work to repeal it. The presidential candidates know that calling for repeal of "Obamacare" is a sure-fire applause line every time.

Politically, that won't be easy. Not only would the Republicans need to win the presidential election, they'd need to hold onto the majority in the House of Representatives and not only win the Senate, but get 60 votes to overcome a likely Democratic filibuster to thwart repeal.

In theory, then, the GOP should welcome the prospect of the Supreme Court doing its work for it. But as the old saying goes: "Be careful what you wish for. You might get it."

There is an inherent danger in trying to settle political disagreements by court decision. It is appealing, no question. If one can get the Court to declare the other side's view unconstitutional, one not only wins the immediate battle, but the war. No mere democratic majority can undo what the Court has done. Unless the Court reverses itself, that view stands. What could be better?

Well, the politics can get tricky.

No case better demonstrates that than the infamous Dred Scott decision of 1857. Technically, the matter was a fairly simple one: Was Dred Scott, who had been a slave, now a free man due to having been taken to free territory?

The question could have been answered simply, by looking at that narrow question. But the Court, looking to issue a more comprehensive decision that some people hoped would put an end to the political controversies surrounding slavery--especially slavery in the territories--decided to go big. As James McPherson puts it in Battle Cry of Freedom, many Americans were "yearning for settlement of this question."

Not only did the Court rule that Scott was still a slave, it also ruled that no black person could be a citizen of the United States (despite the fact that many had been treated as such for decades) and that the 1820 Missouri Compromise, which had banned slavery in the northern territories, was unconstitutional.

The majority opinion, written by Chief Justice Roger B. Taney (an Andrew Jackson appointment), is widely considered to be one of the worst, if not the worst, in the history of the Court. Taney was a southern partisan, who privately said that northerners were trying to destroy the south: "the knife of the assassin is at their throats." According to one of the foremost historians of the case, the Dred Scott decision was "essentially visceral in origin ... a work of unmitigated partisanship."

Southerners and Democrats were thrilled, thinking the decision had destroyed the Republican Party, whose position on slavery was that it should be banned in the territories--precisely what the Court had now said could not be done. The decision was called "the funeral sermon of Black Republicanism." Southerners were convinced that they had won the final victory over anti-slavery forces: "Southern opinion on the subject of Southern slavery ... is now the supreme law of the land."

But the politics turned out differently. Republicans like Abraham Lincoln seized upon the Court's opinion as a rallying cry. Far from destroying the Republican Party, it breathed life into it. It now became more important than ever for Republicans to control Congress and the Presidency, so they could nominate new members to the Supreme Court and undo that awful decision.

Perhaps more importantly, Taney and the Court, with their overreaching decision, reversed the political dynamic of the moment. For many years. Southerners had been portraying themselves as victims of northern (political) aggression. Abolitionists and other anti-slavery agitators had been attacking their "peculiar institution" for years. They could plausibly claim that the political discord in the land came from their northern enemies.

Then came Dred Scott. It had undone the 1820 sectional compromise, and in the process, wrecked what remained of the spirit of political compromise. Using the undemocratic institution of the Supreme Court, they had thwarted the political process, which Republicans could claim was stumbling in its typically awkward American way toward some resolution.

The decision, Republicans could say, showed that southerners and Democrats had no respect for or faith in the democratic process. They were simply determined to protect slavery any way they could--even if it meant hopelessly perverting the historical record, even if it meant twisting themselves into knots to justify their illogical opinion.

The Dred Scott decision was a pyrrhic victory for southerners. Three years later, the Republicans proved the "funeral sermon" was premature--they won control of the Presidency and both Houses of Congress. The case produced not an end to the debate, but rather a political backlash that ended with the destruction of the very institution of slavery that southerners were trying so desperately to save.

It would be foolhardy to predict the possible outcomes of all of the potential Supreme Court decisions in the health care case. The temptation for some members of the Court to issue a sweeping decision will be strong, but a more temperate majority may emerge. The safest thing to predict is that a decision that initially appears to be a clear-cut judicial victory could end up being a political defeat.