Constitutional law and the Supreme Court's healthcare decision

Courtesy of Ezra Klein, here is Yale Law School constitutional law professor Akhil Amar on the widespread expectation that the Supreme Court will vote by 5-4 to find the healthcare mandate unconstitutional:

“I’ve only mispredicted one big Supreme Court case in the last 20 years.  That was Bush v. Gore. And I was able to internalize that by saying they only had a few minutes to think about it and they leapt to the wrong conclusion. If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”

Constitutional law is an odd subject.  There is only so much there there.  Suppose I say that X is better tax policy than Y.  I base this claim on a clear framework, and once one accepts this framework - which admittedly is not a forced move unless you go full Kaplow and Shavell on the case for utilitarianism - my claim can in principle be rigorously evaluated under this framework.  The assessment becomes in large part empirical, even if the relevant facts are not entirely knowable, and although it's true that "utility" is not quite a single, even in principle measurable, thing.

Constitutional law doesn't have an underlying framework in the same sense.  It has some policy content (including in a roughly rule-utilitarian kind of a sense, i.e., how would it be best in the long run to interpret a document such as the Constitution), some linguistic interpretative content, with history and precedent mattering in some way that one can't quite specify.  And it has always been true that constitutional scholars on both the left and the right tend to find that the U.S. Constitution, as properly interpreted, has this mysterious tendency to come out the way they like more often than not, on grounds not confined to their policy preferences.

As Klein headlines his piece, "of course the Supreme Court is political" - although his point is not just that con law is inevitably political, but that the Court's being affected by rising partisanship throughout our political system and society is only to be expected.

But constitutional interpretation used to be a kind of formal game that had rules and constraints, limiting (if you operated in at least a modicum of good faith) the extent to which you could always come out however you liked.  There was in effect an implicit pact - I on one side will play the game in at least moderately good faith although this constrains my ability to get the outcomes I like, because I believe that you on the other side are doing the same thing.  Actual or implied tit-for-tat can keep this a stable state of affairs, at least under the right circumstances.

It's that element of good faith that we are starting to lose.  I have the impression that the 5 Republican votes on the Supreme Court do not see their role any differently than say, Senator Mitch McConnell sees his.  To give another illustration, if the 2012 presidential election ends up in the Supreme Court just like in 2000, only with different issues - admittedly an extreme longshot - I believe there is a 100% chance that the 5 Republicans will anoint Romney.  Precisely reverse the legal issues so that Obama, not Romney, is raising exactly the same arguments, and again it would be 5 Republican votes for Romney.  I believe this degree of crass and dishonest partisan result orientation is something relatively new (or at least unusual) in U.S. constitutional history, enhanced by the intoxicating experience that the 5 Republicans who were on the court in 2000 must have felt when they got away with Bush v. Gore and saw how easy it was.

This is a dangerous state of affairs, endangering the U.S. legal and political systems and the rule of law.  I agree with Amar that (as paraphrased by Klein) "a 5-4 party-line vote against the mandate would be shattering to the court’s reputation for being above politics."  The arguments against it are so ludicrous and paper-thin (e.g., claiming that mandatory health insurance is an end product, not a way of financing healthcare) that only the vast human capacity for self-deception prevents those who argue against the mandate's constitutionality from being consciously in bad faith.  And even if the general public doesn't see how corrupt a decision to strike down the mandate would be - given existing precedent and the accepted constitutionality of Social Security and Medicare - elite opinion (on the right as well as the left) clearly does.

The Court's reputation depends, to a large extent, on elite views that last over time, even if these views don't show up in the overnight polling of the general public.  But I'm not convinced that the members of the pack of five actually care about that.  They just want their side to win today.  So I am expecting that they will strike down the mandate and perhaps even the entire Act, even though if Romney had been elected in 2008 and passed exactly the same legislation, it wouldn't even have been challenged.  Let's hope that my pessimism is misplaced.