George Bush Laughs Last?

The post-mortems already have begun, and as usual, they overdetermine the surprising success of the constitutional challenge to the individual mandate to purchase health insurance. If the Supreme Court actually strikes the mandate down, observers will continue to claim that the critics framed the debate effectively, that the Solicitor General defended the mandate ineffectively, that Congress and the Obama Administration were too slow to perceive the threat, etc.

But all we really need to know is that George Bush, rather than Al Gore or John Kerry, nominated Sandra Day O’Connor’s replacement to the Supreme Court. That difference in the Court’s ideology explains far more than anything else. Indeed, as the Court’s decision last week in Knox illustrated, the justices can readily draw on their philosophical biases without any help to reach their decisions. In that case, as the four moderate justices pointed out, the conservative wing of the Court announced a new principle about the first amendment rights of non-union members without hearing arguments on the particular matter. Contrary to the Court’s standard rules, the majority simply decided to establish a new doctrine without giving the parties a chance to weigh in. There was no need for conservative law professors, television hosts, newspaper columnists or elected officials to beat the drums on behalf of management.

If the individual mandate goes down, its viability was determined not in the past couple of years but in 2006 when George Bush appointed Samuel Alito to the Supreme Court.

[cross-posted at HealthLawProf]

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17 Responses

  1. Brett Bellmore says:

    I can’t think of any quicker way to make about half the nation’s ideological spectrum role their eyes at you, than to assert that the Court has a conservative wing and a “moderate” wing. Stuff like that tells people where YOU are, not where the Court is.

  2. Joe says:

    Brennan, Marshall and Douglas consistently had “liberal” rulings and if they were on the Court today would consistently likely dissent from rulings that “liberals” today make. Stewart, White and Powell were “moderates” in those days. Their overall rulings akin to what the “liberals” of the current day decide.

    The OP in its imperfect way was addressing this and rolling of eyes or not, some on both sides know what “liberal” on the USSC used to know and it isn’t quite what it is today.

  3. Brett Bellmore says:

    “Liberal”, “conservative”, these are entirely relative terms. If they weren’t, very few people indeed who claim either title would have a case to make.

  4. Joe says:

    The words have some meaning.

    Again, noting it was ‘imperfect’ and not merely accepting it without edit, the OP is addressing that the “liberal” wing on the USSC is a lot less “liberal,” in fact, repeatedly are “moderate.”

    The “conservative” wing is not similarly less conservative. Generally speaking, on the issues, including hot button ones, they are right to at times even how Rehnquist decided. The fact the Kennedy is a “swing” justice underlines the point. When he, not O’Connor or Powell, both chosen by Republican presidents, both concerned with conservative causes, the line shifted.

    We can pretend this didn’t happen or not try to somehow express it by using the same word to apply to very different things, but this is akin to calling semi-rancid food “tasty” since most of the food around is rancid. I exaggerate a bit for effect but “tasty” still has a meaning as does political labels that are not “entirely” relative.

  5. Joe says:

    Anyway, the OP states a general rule — Casey was largely “thanks” to Bork not being on the USSC. Justices aren’t totally fungible. Elections have consequences.

    Saying 5-4 rulings depends on who appointed the fifth vote doesn’t tell us much. We can count to five. Why the five get there and why their reasoning is right or wrong (including the thing both sides do at times — see Mapp v. Ohio — being “judicial activist”) seems more useful.

  6. Bruce Boyden says:

    David, what if the case comes out the other way? Would that similarly be attributable solely to the appointing president of each justice?

  7. Max Kennerly says:

    You didn’t look far enough back — if the ACA goes down, it will be because five Justices put their political preferences over the law in 2000. If the Supreme Court hadn’t decided that, you know, for just that one case we, not the Florida Supreme Court, shall be the final authority on Florida law, then Gore would have been President and would have chosen O’Connor’s and Souter’s successors.

  8. David Orentlicher says:

    Bruce, however this case comes out, the votes will be determined largely by the personal philosophical views of the justices rather than other factors. While I would prefer that arguments matter more, they have much less impact than they should.

    As to the correlation between a justice’s views and the appointing president’s views, the correlation is quite good, including with Alito. But there are surprises, as with Souter and Bush 41. And Kennedy probably has not been all that Reagan would have liked, though he may have been all that Reagan could have hoped for in the wake of the Bork vote and with a Democratic majority in the Senate.

  9. Orin Kerr says:

    When my side wins, it is a triumph of reason; when the other side wins, our reason is outnumbered by their mere exercises of power.

  10. TJ says:


    I think everyone except the most hardcore formalist will agree that personal philosophy plays an an important role. But it is one thing to say that personal philosophy plays a major role, and quite another to say that it the only thing that matters (and, moreover, that appointments are the only determinants of philosophy). Your “all we really need to know” comment takes a strong–I would say obviously untenable–stand in favor of the latter position. The appointment of conservative justice in 2006 is a necessary condition for a decision to strike the mandate, but it was far from a sufficient one.

  11. PrometheeFeu says:

    Given your tone and the that of the article you linked to, I thought the court had abolished unions or some such. Going from an opt-out to an opt-in system for special assessments of non-members in cases whether the money is destined to political activities isn’t exactly the earth-shattering change that I was expecting.

  12. David Orentlicher says:

    TJ, it’s good of you to take the time to write, but nothing you say contradicts what I actually argued. I simply claimed that for the Court’s decision on ACA, the ideological make-up of the Court “explains far more than” the other factors that have been cited, like the performance of the Solicitor General at oral argument.

  13. TJ says:

    David, to the extent that you only argued that the Solicitor General’s performance is a minor factor compared to the justice’s predispositions and ideology, I agree. But that is not the only thing you wrote. Among other things, you also wrote that “There was no need for conservative law professors, television hosts, newspaper columnists or elected officials to beat the drums on behalf of management.” Contrary to this, if conservative law professors, conservative television hosts, conservative newspaper columnists, and conservative elected officials were all united in dismissing the challenges as lacking merit, I would place a heavy bet that there would be no circuit split and the Court would not even have granted cert (not to mention there would be no Florida v. HHS case in the first place, given that it requires an elected official to bring).

  14. mls says:

    If the Court upholds the mandate, it will be because FDR threatened to pack the Court in 1938. Hey, this game is fun!

  15. David Orentlicher says:

    TJ, if conservatives all were united in dismissing the constitutional challenges, then I agree with you that we wouldn’t be where we are today. My argument rests on the influence of ideology on judicial decision making, and your hypothetical posits the conservative position as supporting the constitutionality of the mandate.

  16. TS says:

    @ MLS: Yes, I love how the baseline for “nonactivist” exercise of judicial reason is someone Wickard, Darby, and NLRB v. Jones and Laughlin Steel and not, say, the ratified document. Hyperrealists just don’t like it when their chickens come home to roost.

  17. Joe says:

    Roberts was already changing his views before the packing plan was announced. But, tossaway snark probably is ruined by such nuances.

    TJ’s latest underlines how just looking at the ideology of the five justices is not that interesting. The conservatives repeatedly have not gone as far as some conservatives have liked. Outside forces affect their decisions, especially the votes of Roberts and Kennedy.

    Heck, even in Knox, WHY the justices went the way they did (do shareholders have such “veto” rights?) can very well be influenced by outside forces, such as say the Koch Brothers who more than one of them appear to be sympathetic with.