Getting to 5-4

Rush Limbaugh on SCOTUS Blog's comments concerning the healthcare arguments before the Supremes:

The idea that this legislation is so important, so transformative that a 5-4 decision is not desirable by the chief and by a lot of people, that it would roil the country. A 5-4 decision is too narrow if they're gonna find the bill unconstitutional. Because, you see, theoretically the Supreme Court hates -- theoretically -- hates telling Congress that what it's doing is illegal. They hate intruding on this. They are always balanced on the side that whatever happens in Congress is fine and dandy, and it has to be a real breach before they move in and take it away from 'em. And if they're gonna move in and take it away from them and declare what Congress did illegal and against the law and constitutional, they don't want to do that with a 5-4 decision.

That's what this theory holds. I'm not telling you I subscribe to this. But if that part of the theory is accurate, what's that tell us? It tells us that the court's worried about its reputation more than getting the law right. It's worried more about what people are gonna think of 'em. They're worried more about how it might roil the population, 5-4. We need 6-3 and we need 7-2 on this. So how do you get there? The theory is that Kennedy will go ahead and join the libs and make it 5-4 for total constitutionality, because he signaled that. Then Roberts, after having seen that, knows he can't stop it, so he joins the majority to make it 6-3 so that he gets to write the opinion. And in writing the opinion, Roberts will then limit the scope of the Obamacare bill to something like, yes, Congress can force us to buy health insurance, but nothing else.

The idea that the Supreme Court is not anxious to intrude on the prerogatives of either of the other branches is a commonplace and did not come from SCOTUS Blog.  If the Court can find a way to uphold a law, it will do so.  The three branches of government are in fact co-equals. 

Nor did the idea that a decision, one way or the other, on the health care law by more than a 5-4 margin would be a good thing originate with SCOTUS Blog. The story is that Earl Warren worked hard to make Brown v. Board of Education a unanimous decision so that it would minimize the amount that it "roil[ed] the population."

Warren convened a meeting of the justices, and presented to them the simple argument that the only reason to sustain segregation was an honest belief in the inferiority of African Americans. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive Southern resistance. He began to build a unanimous opinion. Although most justices were immediately convinced, Warren spent some time after this famous speech convincing everyone to sign onto the opinion. Justices Robert Jackson and Stanley Reed finally decided to drop their dissent to what was by then an opinion backed by all the others. The final decision was unanimous.

Considering only the practical and political effect of a decision, it seems obvious that the larger the majority, the stronger the impact will be. But it does not follow that believing that 6-3 is more persuasive in the real world than 5-4 means that "the court's worried about its reputation more than getting the law right. It's worried more about what people are gonna think of 'em..."  It is certainly possible for the Court to be concerned with both "getting the law right" and its reputation.  Just as important, when you have a 5-4 decision, there is a tremendous incentive for the losing side to try again with a law that has only been revised the minimum amount necessary to change one vote on the Supreme Court, or even with no real changes at all when the winning coalition on the Court loses a member to death or retirement.

And SCOTUS Blog is correct in at least one more respect:  The more important the case, the more important the margin of victory for the winning side in the Supreme Court becomes, if for no other reason than the stakes are higher.  I think everyone agrees that the stakes are very high in the health care debate. 

That said, if Limbaugh's report of SCOTUS Blog's analysis is correct (there is no link and I did not find the post Limbaugh is apparently referring to), I hope SCOTUS Blog is wrong.  I hope that Court holds the law to be unconstitutional.  If it does not, I am convinced that there will be serious negative economic, political and social consequences for the nation for the foreseeable future. 

I think the stakes are so high that a 5-4 decision holding the entire law unconstitutional would be preferable to upholding it by any margin, whether or not Roberts or any other Justice makes any attempt to limit the prospective application of the decision to health care.  Kennedy was right when he said that the law is an attempt to fundamentally transform the relationship between the governed and their government. 

And there are problems with the strategy of attempting to impose limits on the decision.  The fact of the matter is that Roberts cannot, by himself, "limit the scope of the [decision on the] Obamacare bill to something like, yes, Congress can force us to buy health insurance, but nothing else" unless he is the fifth, not the sixth, vote in a 5-4 decision.  If there are five additional votes to uphold the act, the fact that Roberts writes the decision does not mean that the other five justices voting to uphold the act cannot issue one or more different opinions without the "Roberts limitations," concurring in the result.  Therefore the strategy described would by Limbaugh would be ineffective unless Roberts were able to persuade at least one other justice to agree with him so that his limitation applies to the entire decision. 

And if Roberts managed to persuade one of the five other yes voters to concur with Roberts' limitation, then what would you have?  A limitation imposed by two justices in a six member coalition.  If the law is to be upheld, I hope for the kind of ringing dissent issued in Plessy v Ferguson, which eventually formed the basis for its reversal in Brown. 

Maybe with four votes, it won't take generations to overturn the bad decision.