The blogosphere, including but not limited to our friends at Balkinization, has lately been alive with talk about a hypothetical constitutional challenge to the now all-but-inevitable health care bill. Would the Supreme Court have the temerity to strike the law down, and (if so) how would or should "progressives" (that is, Democrats) react?
So far as I can tell there are two principal constitutional dangers. The first is that the whole bill might be held unconstitutional because it requires people to buy health insurance they don't want from private vendors. The second is that the so-called "Nebraska compromise," by forcing other states to (effectively) pay Nebraska's medicaid costs, might be unconstitutional and (assuming the bill was not severable) take the rest of it down too. Neither of these arguments is likely to convince liberal professors, but the Supreme Court isn't particularly liberal. Should it decide to overturn the bill, various bloggers (notably Sanford Levinson) are suggesting various forms of defiance, which they support with allusions ranging from Bush v. Gore to Dred Scott, Plessy, and other low points of constitutional adjudication.
I'm not a constitutional lawyer, and I'm not especially liberal, so to some degree is simply entertainment for me (so far). But I would make a couple of points:
1. I'm not convinced that the constitutional argument against the law is so weak, or at least, that it is necessarily inconsistent with existing precedents in the Scalia (sorry, Roberts) Court. Certainly the Court--or a portion of it--has been aggressive in its approach to federalism and limitations on Government power. Unlike Bush v. Gore, then, there seems to be a genuine issue of principal rather than politics at stake.
2. Nor would a holding against the bill necessarily be counter-majoritarian, to use a favorite academic term. Most of the country doesn't seem to like the bill very much, as expressed in numerous opinion polls. Indeed, one of the principal reasons Democrats are rushing it is to finish before they're voted out (maybe) next year.
3. It's entertaining, but also a bit scary, to see prestigious professors argue that everything in the way of the health bill--the Senate rules, the Supreme Court, public opinion itself--be treated as an obstacle to overcome rather than a precedent to be respected. Advocates are paid to take whatever position is in their clients' interest. Scholars are expected to do better, and their repeated willingness to adopt an "ends over means" jurisprudence is chilling and dangerous. If the Democratic Congress and President are voted out of office, will they find a reason to ignore that result too?
Not especially relevant, but I'm especially entertained by the role of Yale professors (not including Levinson) in arguments of this type. I attended Yale in the late 70s-early 80s, where professors celebrated exactly the kind of Supreme Court activism that they now condemn. These "progressives" also presented us with a faculty that had no minorities and one woman among thirty or more tenured members (the Dean explained helpfully that the school would not compromise its standards in order to hire such people). There is a book out there that says schools like Yale are neither liberal nor conservative but merely trendy, taking whatever positions they believe will appeal to elite applicants and potential future donors. If the shoe fits, wear it.