We don’t know how the Supreme Court will rule on the Affordable Care Act, but if it chooses to overturn the law, E.J. Dionne’s assessment of the court’s behavior this week will look very apt:
This is what conservative justices will do if they strike down or cripple the health care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.
Taken in isolation, a decision to cripple or overturn the health care law is objectionable—the mandate falls within Congress’s established power to regulate interstate commerce, and the theoretical argument against it proves too much—but doesn’t necessarily threaten the Court’s legitimacy. Supreme Court justices are human, and this wouldn’t be the first time that they made an ideologically-driven decision. But if you place the Court’s (potential) action against Obamacare in the context of the last two decades, then it paints a more alarming picture.
In 1992, a Democratic president was elected for the first time in more than a decade. Almost immediately, an invigorated right-wing—driven by anger at the previous Republican president—tried nearly everything in its power to derail Bill Clinton’s first term. Soon thereafter, they won an unprecedented victory in the House of Representatives and doubled-down on their efforts, resulting in a government shutdown. But this backfired, and public disgust (coupled with a rapidly improving economy) put that president back into the White House for a second term.
Of course, this couldn’t stand at all, and over the next three years, the right-wing and its allies in Congress launched a baseless witch hunt against the president, culminating in impeachment over the “scandal” of lying about an affair (distasteful, but not illegal). Unfortunately for the right, Clinton managed to hang on and finished his presidency as one of the most popular figures in American politics.
Luckily for conservatives, they had a second chance at sabotaging a Democratic politician. Rather than allow the state of Florida to continue its recount in the 2000 election, the Supreme Court effectively ruled that Florida should just give the election to George Bush. This was a nakedly partisan decision, and the movement conservatives on the Court knew it—they all but said that this was a one-time event that shouldn’t be held as precedent.