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.

The Great Compromisers

As much as anything, Barack Obama has tried to cultivate an image as a reasonable man of compromise. As I noted in my last post, he has even made the case that his model for presidential leadership, Abraham Lincoln, compromised in the act of emancipation.

Lincoln himself had a political role model, Henry Clay. According to Lincoln biographer David Herbert Donald, Lincoln "almost worshipped Henry Clay." Clay was Lincoln's "beau ideal of a statesman," and Lincoln referred to himself as "an avowed Clay man."

Henry Clay, "The Great Compromiser"

Clay is best known as "The Great Compromiser" for his central role in the three most dangerous political crises of the antebellum era. In 1820, he engineered the Missouri Compromise. In 1833, he worked on a tariff compromise that allowed South Carolina to back down from its nullification and prevented the use of force against the state by Andrew Jackson.  And in 1850, he put together the package of proposals that later became the Compromise of 1850.

As a Clay man and compromiser, Lincoln exhibited the same kind of frustration with ideological purity that Obama does. In 1845, he took to task the abolitionists for their purist attitude in the election of 1844. Clay was the Whig nominee, and barely lost the election to James K. Polk. New York (the largest state at the time) made the difference in the electoral college: "If the whig abolitionists of New York had voted with us last fall, Mr. Clay would now be president, whig principles in the ascendant, and Texas not annexed."

Lincoln showed clear disdain for the abolitionist rationale: "We are not to do evil that good may come." Why did they see voting for Clay as evil? Clay had, for political reasons, suggested he might be open to the annexation of Texas (thereby increasing the number of slave states), so abolitionists had opposed his candidacy and thrown their votes to a third party, thus giving the presidency to the clearly pro-annexation and pro-slavery Polk. To Lincoln, this was utterly foolish: "An evil tree cannot bring forth good fruit. If the fruit of electing Mr. Clay would have been to prevent the extension of slavery, could the act of electing have been evil?" Abolitionists, he said, "could have prevented" the evil of annexation "without violation of principle, if they had chosen."

Lincoln himself could put political expediency over his personal preferences. Four years later, in 1848, Lincoln threw his support to Gen. Zachary Taylor, favoring him over Clay for purely practical political reasons:

I am in favor of Gen. Taylor as the whig candidate for president because I am satisfied we can elect him.... I go for him, not because I think he would make a better president than Clay, but because I think he would make a better one than [any of the potential Democratic candidates] one of whom is sure to be elected if he is not. 

(With murmurs of a primary challenge to Obama rising from the left, this is one Lincoln quotation the president might want to see spread widely.)

This is the Lincoln that Obama finds so appealing, because he is so much like Obama himself. We can hear in Lincoln's reproach to the abolitionists Obama's complaints about the Huffington Post, and his press secretary's grousing about the "professional left." This is the rational, deliberate, cautious politician who always keeps his eyes on the political prize, who chooses the greater, long-term good over the immediately satisfying act of self-righteousness.

Lincoln, like Obama, had faith in the ultimately rational nature of his political opponents. When he was running for president in 1860 and the fire-eaters threatened secession were he to be elected, Lincoln dismissed the possibility: "The people of the South have too much of good sense, and good temper, to attempt the ruin of the government, rather than see it administered as it was administered by the men who made it. At least, I hope and believe."

This is the same attitude Obama expressed last December when he was asked about the possibility of Republicans using the threat of not raising the debt ceiling to force acceptance of their policies: "Here's my expectation, and I'll take John Boehner at his word, that nobody, Democrat or Republican, is willing to see the full faith and credit of the United States government collapse."

Neither Lincoln nor Obama could really imagine political opponents who would not, in the end, be reasonable.

Lincoln was convinced that Southerners would never go through with secession, because secession would mean civil war, with the South losing. In a speech in Cincinnati in September 1859, Lincoln presciently explained the likely outcome of such a war:

man for man, you are not better than we are, and there are not so many of you as there are of us. You will never make much of a hand at whipping us. If we were fewer in numbers than you, I think that you could whip us; if we were equal it would likely be a drawn battle; but being inferior in numbers, you will make nothing by attempting to master us.

To Lincoln, this scenario was so obvious that it all but precluded secession--secession would be self-defeating and thus irrational--just as Obama believed that no one would risk the self-destructive consequences of failing to raise the debt ceiling.

Lincoln clung to the hope of an eventual return to rationality even after secession was a fact. According to James McPherson, during the early weeks of his presidency, prior to Fort Sumter, Lincoln agreed with Secretary of State Seward's proposal that the administration "ought to be conciliatory, forbearing and patient, and so open the way for the rise of a Union party in the seceding states which will bring them back into the Union."

"As late as July 1861," McPherson writes, "Lincoln expressed doubt 'whether there is, to-day, a majority of the legally qualified voters of any State, except perhaps South Carolina, in favor of disunion.'"

Lincoln kept hoping that reason would prevail. But it did not.

Despite two and half years of obstruction and brinksmanship, Obama remains convinced reason will prevail among Republicans in Congress. Just yesterday, he appealed yet again for "common sense and compromise." He once more tried to be bipartisan: "Republicans and Democrats on the bipartisan fiscal commission that I set up put forth good proposals. Republicans and Democrats in the Senate’s Gang of Six came up with some good proposals." The problem, he said, is "the insistence on drawing lines in the sand, a refusal to put what’s best for the country ahead of self-interest or party or ideology."

Obama seems determined to refuse to give up this belief in the possibility of compromise, no matter how unreasonable his opposition is. That is admirable. I'm sure it is what he thinks Lincoln would do. But in agreeing to Seward's appeal to be "conciliatory, forbearing and patient," Lincoln also said the following: "We mean to be as deliberate and calm about it as it is possible to be, but as firm and resolved as it is possible for men to be."

For Lincoln, that meant being unmovable on principle: he would not allow the extension of slavery into new territories (he would agree to "no compromise which assists or permits the extension") and he would not accept secession. "By no act or complicity of mine," Lincoln said during the secession crisis, "shall the Republican party become a mere sucked egg, all shell and no principle in it."

When faced with the implacable opposition of ideologues, people who had abandoned rational politics, Lincoln knew he had to stand firm.

Obama, if he is to be a successful president, needs to decide what, for him, is essential. He then needs to tell all of us, supporters and detractors alike, what that is. And he must stick to it.

Last month, in the midst of tense negotiations, Obama is reported to have said to House Minority Leader Eric Cantor: "Eric, don't call my bluff. I'm going to the American people on this." At issue was Cantor's resistance to any tax increase: "[The president] said Cantor could not have it both ways of insisting on dollar-for-dollar and still not being open to revenues."

We now know, of course, that there would be no new revenues in the deal Obama eventually accepted. Cantor called his bluff, and it was a bluff.

We can disagree on how great a compromiser Lincoln was, but one thing I think is certain: he did not bluff. He made clear what he would accept, and what he would not.  Then he followed through. As his wife, Mary Todd Lincoln, once put it: "He was a terribly firm man when he set his foot down."

Obama needs to emulate that side of Lincoln, too.