Jun 4, 2012
With the exception of Bush v. Gore, which in effect confirmed George W. Bush’s victory in the 2000 presidential election, it would be hard to think of another recent Supreme Court case that’s been the occasion of as much advance tugging and pulling from outside sources as the court’s anticipated ruling on Obamacare. The decision is expected before the justices quit for the summer late in June.
Even Barack Obama lost his presidential cool and indulged in a burst of preemptive huffing and puffing aimed at activist judges who might be so bold as to undo his ambitious scheme for overhauling the nation’s health care system. In April the president said overturning a law enacted by “a democratically elected Congress” would be “an unprecedented, extraordinary step.”
As critics were quick to point out, the court has taken precisely that unprecedented step many times since 1803, when Marbury v. Madison affirmed its constitutional right to review and, if necessary, strike down laws passed by democratically elected congresses. Obama wisely moderated his rhetoric next day.
Others didn’t. The New York Times, for one. Looking ahead, as Obama had, to a hypothetical overturning of the Patient Protection and Affordable Care Act, the newspaper claimed that “the court will mark itself as driven by politics” if Obamacare is overturned by “five Republican-appointed justices supporting the challenge led by 26 Republican governors.” The Times was hardly alone in milking this line.