When it comes to major constitutional questions, such as those raised by the health care case before the Supreme Court this week, we’re all lawyers. Except, oddly enough, for the actual lawyers on the Supreme Court – and that may turn out to save health care reform.
We’re all lawyers? Not lawyers as in experts on the law, precedent, and the Constitution. No, I mean lawyers as we think of lawyers in the popular imagination: willing to believe whatever is necessary in order to make the best case for our client. And since most of us, especially those of us who pay enough attention to politics to know about Supreme Court arguments, are partisans, that means that most of us have as our “clients” the positions our party takes on the underlying issue.
What I mean is: there are vanishingly few people who believe that the Affordable Care Act was a terrific piece of legislation except that it is unfortunately unconstitutional. Nor are there more than a handful who believe that the ACA is certainly permitted by the Constitution, but is otherwise a terrible idea.
And that’s consistent across almost all issue areas. Few indeed are those in the pro-life camp who believe Roe vs. Wade was correctly decided, or pro-choicers who believe that there is no Constitutional right to privacy that includes abortion. And yet, as with the health care example, there’s nothing particularly contradictory about believing, say, that abortion should be legal even though there doesn’t happen to be a Constitutional right to it.
What should we learn from all of this? Mostly, that we shouldn’t take at all seriously anyone’s protests that what they’re doing is driven mainly by Constitutional doctrine. The strongest Tea Partiers out there will be happy to complain all day about the intrusiveness of the federal government…except that on the Second Amendment, they believe the courts have been quite right to enforce the right to bear arms against states’ preferences for gun control.
That’s not to say that Americans don’t care about the Constitution: We certainly do, and probably we’re quite attached to most of the broad provisions of the Constitution, including the Bill of Rights, in the abstract. We just interpret it, in the particular, as allowing whatever we want it to allow and banning those things we want it to ban.
Except, perhaps, those at the very extreme tip of the information curve: Constitutional specialists, including those on the Supreme Court. They may, ultimately, decide this one as partisans, but it’s far more likely that the justices will actually apply constitutional doctrine, regardless of what they believe about the substance of the case, than most ordinary citizens would. That doesn’t mean that the Court isn’t political – after all, the doctrines that each justice adopts may be very much shaped by the substantive implications it holds in many cases. And it’s true that some cases seem to be best explained by partisanship. But my guess is that judges in general, and Supreme Court justices in particular, are about the most likely people in the entire country to be able to live comfortably in those otherwise empty spaces in which they like the substance but find the bill unconstitutional or the other way around.