The Supreme Court and health care repeal politics

Source: The Economist

Attorneys general from 14 states (so far) are filing lawsuits to challenge the constitutionality of health care reform. Some have the support of their Republican governors. Others have incensed their Democratic governors. Orin Kerr, on the conservative/libertarian law professors’ blog The Volokh Conspiracy, gives the odds of repealing the individual mandate as less than 1%. He believes the matter will be dismissed in the lower courts and never reach the Supreme Court.
Linda Greenhouse, a longtime observer of the Supreme Court, makes her own case for why the repeal efforts will be futile and a waste of taxpayers’ money. Her argument is not based on the principle of federalism or the Constitution’s “commerce cause,” but on the personality and character of the Supreme Court justices.

The Court will not be on the wrong side of history

The optimism of those who seek to repeal health care reform is based on a brief period in the 1990’s when the Rehnquist court upheld a narrow view of Congressional authority. Chief Justice Rehnquist and Justice Sandra Day O’Connor, both from Arizona, were highly sympathetic to states’ rights arguments. But those justices are both gone, and the court is no longer what it used to be.

[Current Chief Justice] John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for [Justice] Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party. …
[P]lenty of people cared about the Family and Medical Leave Act, the law at issue in a 2003 case … Chief Justice Rehnquist surprised almost everyone in that case, not only voting to uphold the law’s application to state employees, but also writing a majority opinion displaying so much sympathy for the aims of the law it could have been ghost-written for him by Justice Ruth Bader Ginsburg. And with that decision seven years ago, the federalism revolution sputtered to an end.
John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.
Midweek polls showed the public already rallying around the new health care law. That trend is likely to accelerate as people realize that the law’s benefits belie the scare stories — just around that time that the state challenges are likely to reach the Supreme Court. It won’t require a summa cum laude in history from Harvard to be able to tell history’s wrong side from its right.

If you do the math it doesn’t add up

The lawsuits are just a distraction – an opportunity to satisfy the emotional demands of the Tea Party base of the Republican Party. In four states where attorneys general have filed lawsuits to repeal reform — Michigan, Colorado, Washington and Pennsylvania – their governors have told U.S. Attorney General Eric Holder that they will work to support reform.
The lawsuits are about declaring the legislation unconstitutional. The other strategy for repeal involves electing members of Congress who will overturn health care — the new slogan is Repeal and Replace. The bottom line, however, is that if every Senate seat up for election this year went to an anti-reform candidate, there still wouldn’t be enough votes to override a presidential veto.
Here’s the math:
41 Republicans currently in the Senate
18 of the 41 seats are up for re-election
23 (41-18) Republican seats will not be affected by the election
36 total Senate seats up for re-election
59 (23+36) Maximum possible Republican Senators after election
Not only would Republicans fall far short of the 67 votes needed to override a presidential veto. They wouldn’t even have enough votes to prevent a filibuster.
Time to take a deep breath and not worry about this distraction.
Related posts:
Could conservatives reverse health reform in 2013?
Déjà vu: Historical resistance to the inequities of health
Why is it so hard to reform health care? Political structure
Why is it so hard to reform health care? Rugged individualism