It is gospel among liberal pundits and academics that the country is more polarized and the right is doing the polarizing. If five conservatives on the Supreme Court (whom the left believes are not only conservative in their judicial philosophy but also GOP partisan hacks) all vote one way in a given case it’s rigidity. If the four liberals never deviate from the left’s desired outcome, they are wise scholars.
Here is a prediction for you that illustrates how liberal ideological rigidity is expected and even praised: No liberal justice will find any portion of Obamacare invalid or any argument for striking it down to be compelling. This isn’t much of a prediction because virtually all observers are convinced there is not a whiff of independent thinking or jurisprudential flexibility among the four liberals. It is a given that they are solidly and inflexibly committed to upholding the health-care law.
The left, which will jump to vilify Chief Justice John Roberts if he is the fifth vote to strike down all or part of the individual mandate, must acknowledge that he and Justice Anthony Kennedy are the least ideologically rigid of the justices and therefore the hardest to predict. That is why the focus and the public persuasion campaigns have centered around them, and primarily the chief justice.
Now, a word about the two presidential candidates. It would be encouraging if neither egged on his side to trash the Supreme Court. It would not be impressive behavior for those who seek to lead the country and defend the rule of law. President Obama has already stiffed and evaded Congress (most recently on unilaterally amending immigration law and cooking up a phony executive-privilege defense); he would show some maturity and confound his critics if he respectfully disagreed with an adverse ruling but warned against wild accusations and disrespect for the justices. He did damage to his own image by trying to bully the court on Obamacare and lecturing the justices on Citizens United. He might, for a change, try acting like the president.
Mitt Romney, of course, is in an easier position than the president. If the law if upheld, his policy attacks on the law go on and he can sympathize with voters who find the individual mandate an impingement on personal freedom. For him, a loss in the court is not a humiliation (as it would be for Obama), but the beginning of a new round of attacks on an unpopular health-care law.
If the health-care law in invalidated in whole or in part, a great number of liberals who never anticipated the legal challenges and were shocked at the oral argument will present themselves as “experts.” We should heavily discount their analysis, given their shaky grasp of the issues. The wonderful thing about our Supreme Court is that the justices explain themselves in writing. Let’s take those arguments and analysis (and not the TV talking heads) seriously — the justices sure do.
People of good will on the right and left should reject the urge to treat the court like a bunch of crooked casino operators who have fixed the games. Both right and left in the future will seek the court’s favor and demand respect for its rulings.