The most politically important Supreme Court term in decades
By Curt Levey
Texas Insider Report: WASHINGTON D.C. The Supreme Courts announcement Monday that it will review the constitutionality of ObamaCare ensures that the health care law will be one of the biggest issues in next years Presidential & Congressional elections.
Theres no doubt about the magnitude of ObamaCares impact on the 2012 elections but the direction of the impact is not as clear.
Federalism -- including the 10th Amendment and Congress enumerated powers -- will also be a prominent election issue because the Courts decision will have even larger implications than the fate of ObamaCare. The decision will answer the momentous and timely question of whether there are any real limits on the federal governments power over states and individuals.
The ObamaCare and several other cases knocking on the High Courts door will make this the most politically important Supreme Court term in decades. (See article that follows below.)
If the Supreme Court upholds ObamaCare in its entirety it will be seen as a victory for President Obama and Congressional Democrats which would likely provide them with some electoral momentum. On the other hand such a decision by the Court would throw responsibility for reforming ObamaCare entirely on the shoulders of the new Congress and President thus making it an even bigger election issue.
That might be bad news for Democrats given ObamaCares continual poor showing in the polls.
Conversely if the High Court strikes down ObamaCare in its entirety it would be a victory for Republicans giving them the electoral momentum but at the same time largely depriving them of one of their best election issues.
Finally if the Supreme Court strikes down one or more of the challenged ObamaCare provisions -- the individual insurance mandate or the expansion of Medicaid -- but leaves much of the statute in effect it would likely be the worst case for Democrats.
Republicans would be able to say I told you so while candidates would be forced to focus on how to repair the shattered statute with Democrats on the defensive.
As you can see what outcome political partisans root for in the Supreme Court will depend on whether they are most concerned about ObamaCare or the 2012 elections.
Meanwhile todays Supreme Court announcement brought no indication that Justice Elena Kagan will recuse herself from the ObamaCare case despite being required to do so under federal law.
The requirement arises from Kagans documented involvement as U.S. Solicitor General in the Administrations preparation for the legal defense of ObamaCares constitutionality. Federal law -- specifically 28 U.S.C. §455(b)(3) -- requires recusal where a judge has served in governmental employment and in such capacity participated as counsel adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.
We take Justice Kagan at her word that she walled herself off from the defense of ObamaCare after she was nominated to the Supreme Court in May 2010. However she had already been involved in the defense for several months at that point as indicated by documents obtained under the Freedom of Information Act (FOIA).
The Obama Administration has been slow and only partially responsive in responding to FOIA requests for documents related to Kagans involvement in ObamaCares defense so it is difficult to determine the depth of that involvement. However the
plain text of 28 U.S.C. §455(b)(3) makes it clear that the requirement for recusal applies regardless of her degree of participation.
The Committee for Justice calls again for Justice Kagan to recuse herself from the ObamaCare case as required by federal law when it is heard and decided next spring.
Curt Levey is Executive Director of The Committee for Justice in Washington D.C.
By Curt Levey - The Hill
The Supreme Court term that began this week will be remembered not for the important cases already on the High Courts docket but for the four blockbuster cases knocking on the Courts door.
The four cases will likely make this the most important term in decades while focusing Americans on several of the nations most emotional and divisive issues - illegal immigration health care reform gay marriage affirmative action and overreaching federal power - at the perfect time to influence the 2012 election.
The rulings in those cases and the ages of several Justices will make the Courts legitimacy and future direction prominent campaign issues as well.
When the Obama Administration signaled last week that it wouldnt delay a Supreme Court decision on the constitutionality of ObamaCare the last piece fell into place for an historic term. Within days petitions for Supreme Court review were filed in
Florida v. Health & Human Services in which 26 states are challenging the new health care law. The timing guarantees ObamaCare a dominant role in the election debate.
Similar timing for the Obama Administrations attack on Arizonas controversial immigration law (
United States v. Arizona) wipes out any chance that candidates will be able to sidestep the thorny issue of illegal immigration next fall. In August Arizona Governor Jan Brewer asked the Justices to review the Ninth Circuit decision siding with the Obama Administration. That case along with the ObamaCare case also shine attention on the federalism issues - state sovereignty and the constitutional constraints on federal power - so important to the Tea Party.
The third big case is
Fisher v. University of Texas which challenges minority admissions preferences at UT Austin and presents the Justices with their best chance to narrow or overturn the legal basis for racial preferences in higher education. Last month plaintiff Abigail Fisher asked the Supreme Court to review the Fifth Circuits decision in favor of the University of Texas.
All three cases if accepted by the Court are very likely to be heard and decided before this Supreme Court term ends next June just a few months before the election.
The fourth blockbuster case
Perry v. Brown a challenge to Californias Proposition 8 aimed at establishing gay marriage as a federal constitutional right is unlikely to be decided by the Supreme Court before the election. But if the liberal Ninth Circuit agrees with a lower court that same-sex marriage is indeed a constitutional right the Justices will have little choice but to review the decision. The momentous news that the High Court has decided to determine the fate of gay marriage - and perhaps the dramatic oral argument before the Court - would likely come just a few months or weeks before the nation votes.
Lovers of political drama couldnt ask for a more fortuitous confluence of events: the most emotional issues dividing the nation - illegal immigration gay marriage ObamaCare racial preferences and the legitimacy of federal power - all likely arriving at the Supreme Court during a single presidential election year.
When each case is decided the ruling will strengthen the convictions of the millions of Americans whose views were confirmed by the Court while infuriating millions of others. Theyll see the decision as a moral outrage - a victory for bigotry for example - and a product of the Courts ideological bias.
Consequently these four cases will not only focus candidates and the public on the emotionally charged issues at stake but will also thrust the judges issue - the Supreme Court judicial activism the next Presidents judicial nominations and the Senates role in scrutinizing those nominees - to the forefront of the 2012 campaign debate.
Not just the presidential campaign. History tells us that the judges issue often plays an influential role in Senate races. Just ask former Senate Democratic Leader Tom Daschle who tried in vain to defend his role in obstructing President Bushs judicial nominees in his 2004 loss to John Thune.
Or ask Karl Rove who said Theres no doubt in my mind that we won races all throughout the country on the judges issue. In 2012 the issue could well decide the battle for control of the Senate.
The electoral focus on judges in 2012 will not be misplaced. The ages of several Supreme Court Justices and the closely divided makeup of the Court means that its ideological balance - and with it the fate of gay marriage abortion illegal immigration and the like - could swing wildly in either direction after 2012.
By 2016 Justices Scalia and Kennedy will be 80 years old. If we assume a 50 percent chance of each man serving through 2016 - better odds than life expectancy and disability tables tell us to expect - there is only a 25 percent probability that both men will do so.
That leaves President Obama if re-elected a 75 percent chance of establishing on the High Court a dependable liberal majority certain to satisfy many of progressives pent-up dreams.
On the other hand Justice Ruth Bader Ginsburg has had pancreatic and colon cancer and will turn 83 in 2016. With four conservatives already on the Court electing a Republican president in 2012 might very well mean the first solid conservative majority on the High Court in 75 years.
The conservative Justices would no longer need to court Kennedys swing vote. Abortion on demand affirmative action restrictions on the death penalty and enemy combatants access to civilian courts would likely fall by the wayside.
Curt Levey is a constitutional law attorney and the executive director of the Committee for Justice in Washington DC.
