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Susan Estrich: Supreme Court’s Politics May Give Obamacare a Constitutional Boost

Two justices may think twice about striking down a law that, at worst, expands government's power to regulate health-care markets

As was clear in last week’s arguments on the constitutionality of the health-care reform law, today’s U.S. Supreme Court is as political as any institution in Washington. It was not always so.

I don’t mean that this court is more divided or more result-oriented than any in recent years. I just mean it’s more political, as in Republican and Democrat political — which, ironically, could actually help Obamacare survive constitutional scrutiny.

There was a long tradition in this country, and a pretty hallowed one, wherein once you appointed someone to the Supreme Court, with life tenure and all that marble, you just never knew.

Did President Dwight D. Eisenhower know, when he struck that fateful deal with California Gov. Earl Warren to name him to the next open seat, that it would be the chief’s seat and that the man who filled it would go on to be celebrated (or decried) as the liberal lion of the century?

Did anyone know that Hugo Black, a former Klansman, would become an absolutist when it came to the Bill of Rights, or that Eisenhower appointee William Brennan would be way to the left of a President John F. Kennedy appointee, Byron White, or that my old boss, Justice John Paul Stevens, whose appointment was opposed by the National Organization for Women, would three decades later be the leader of the liberal wing of the court?

None of these zigzags are “bad things.” Quite the contrary. While every first-year law student learns that law, particularly when it comes to constitutional law as defined by the Supreme Court, involves far more than calling balls and strikes (even if that’s what they all say these days during their confirmation hearings), the fact that the justices don’t operate in party blocs has always lent a certain legitimacy to the decisions of the court. It’s small “p” politics, not the old R’s v. D’s kind.

And that is what makes this court so different, in a troubling way. When you say 5-4 these days, everyone knows just what you mean.

Five R’s against four D’s. When the court splits down the middle, it almost always splits along party lines, with the five Republican appointees (Samuel Alito, Anthony Kennedy, John Roberts, Antonin Scalia and Clarence Thomas) against the four Democratic appointees (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor). If anyone swings, it’s usually Kennedy, which is why most of the commentators were listening so carefully to his questions.

So the conservative blogs, enjoying Kennedy’s tough questioning of the government’s chief advocate, were selling a 5-4 decision striking down the heart of the health-care law as a likely result of the hearings.

Maybe in another year. Maybe in another cycle.

But consider: The opinion of the court is likely to come down at the end of June, just as the country starts tuning in for a hotly contested (read: ugly) presidential contest. A 5-4 decision striking down the law along partisan political lines would do more than anything since Bush v. Gore to make the court look like a partisan political institution. And make no mistake, the court is still getting over Bush v. Gore. Right or wrong (no, this column isn’t long enough), Bush v. Gore was very bad for the legitimacy of the court.

When they go into the chief’s conference room to cast their initial votes, and later as the opinions are circulated, two justices are likely to be thinking about those issues.

The first is Kennedy. Back in 1987, President Ronald Reagan nominated the brilliant but brittle former Yale law school professor Robert Bork to serve on the court. Bork refused to play the balls and strikes game, staking out his ideological ground and sticking to it — and paying the price. In the years since, as both sides have played this game, it is now known as being “Borked.” Kennedy was nominated in his stead. Perhaps it is no coincidence that he is the most traditional justice on the court — meaning the one who doesn’t always vote with the side that “brung” him.

The second is Chief Justice Roberts. For him, this case is not simply about which side wins. He will be judged by history not only for his votes, but also for his stewardship of the sacred trust. And he knows it.

I support the constitutionality of Obamacare. But I also believe that keeping the court out of this campaign is more important than striking down a law that, at its worst, expands the power of government to regulate markets. You won’t hear any of the advocates make that argument. My guess is, it won’t even be voiced in the innermost chambers. But that doesn’t mean there won’t be at least two men thinking about it.

— Best-selling author Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her.

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