This is the latest in a series of columns from attorneys at O’Melveny & Myers LLP, examining the intersections of the political and legal worlds in the run-up to Election Day 2012.
The recently concluded term of the U.S. Supreme Court was the most momentous in recent memorycertainly since the 2000 term, when the Court decided Bush v. Gore, and with it the 2000 presidential election.
While the Court this time did not directly intercede in the ballot-counting process, it did choose to wade into major political controversies on health care and immigration, among othersand did so during an election year, when its decisions would inevitably be viewed against the backdrop of politics and partisanship.
The political motivations underlying the decisions, if any, are beyond our reach. But their political implications are worth considering, given that the Court ended its term with two divided decisions directly addressing issuesthe Obama administrations Affordable Care Act and Arizonas immigration lawalready being sharply contested in the 2012 campaigns. After all, the Supreme Courts decisions on those issues will surely have consequences for that election, right?
Well, noat least not the way many expected as the end of the term approached. As it ultimately turned out, the signal characteristic of the Courts most controversial political decisions was to keep the Court itself out of the political controversies. Accordingly, if the Courts decisions have any effect on the 2012 election, it will be mainly in the sense that they allowed the election to be about the issues the Court addressed, rather than about the Courts own decisions on those issues.
Take the Courts decision on the Affordable Care Act, National Federation of Independent Business v. Sebelius. The most controversial aspect of the law was (and is) the individual mandate provision, requiring U.S. residents either to purchase health insurance, or pay a small tax penalty (if they are above a minimum income threshold). Although mainstream health care policy discussions have included individual mandate proposals for decades, the ACAs legal challengers wanted the Court to take that option completely off the table in political and policy debates.
Whatever you think of the individual mandate policy on its meritsor of the constitutional analysis in Chief Justice John Robertss opinion for the Court upholding the mandate as a lawful exercise of Congresss taxing powerthe ruling ensures that the mandate remains part of the national health care policy discussion, in this election and likely into the future. And beyond jobs and the economy, perhaps the single most important issue in the 2012 presidential election will be whether voters believe the ACAincluding its mandate provisionis a sound way to regulate the provision of health care in the United States. For better or for worse, the Court will not have the last word on that questionthe voters and their elected representatives will.
The Courts other most politically controversial decision, Arizona v. U.S., actually invalidated (for the most part) a state legislative enactment concerning the enforcement of U.S. immigration laws, and thus might be seen as contrary to the democracy-promoting outcome of the ACA case. But the Arizona decision, too, leaves political controversy over immigration policy just where it should be: in the political campaigns of the national policymakers who are (and logically must be) responsible for the nations borders. If the nations citizens and representatives prefer Arizona-style enforcement of U.S. immigration laws, they are free to impose that approach in U.S. law. If they object to the presidents exercise of his broad enforcement discretion, legislators can override it by statute. Or voters can elect a different president with different enforcement priorities. Nothing in the Courts decision limits the policy options available to the national policymakers charged with making and enforcing national immigration laws. To the contrary, the decision facilitates the national debate over those optionsa debate that will be central to the 2012 election.
To be sure, not every decision this term reflects a posture of deference to political decision making. The ACA decision, in another section of the opinion, rejects an expansion of Medicaid potentially critical to the statutes successful operation. Every case is governed by its own relevant texts, traditions, and precedentsno case is governed by a principle as simple as defer to the elected bodies. But the doctrinal nuances of the Courts various decisions this term are not likely to directly affect voters. What matters for this election is that the Court left the biggest political controversies largely to the political process.
The candidates engaged in that process will, of course, invoke certain decisions to motivate their respective bases. But as in other elections, the electoral impact of the decisions themselves will be minimal. A segment of engaged and activist voters care passionately about judicial decisions and judicial appointments, but the battle for mainstream voters generally is not fought or decided on that ground.
The 2012 election could have become an exception. If the Court had invalidated the ACA, the decision undoubtedly would have had a profound impact on the campaign and possibly even its outcome. President Obama could hardly have run effectively on a domestic record devoid of his signature domestic-policy accomplishment. In that limited respect, the Court did give the president a political victoryits decision allows him to defend his domestic achievements on their merits during the election. But the Court also gave his opponent a victorynot only can Governor Romney attack the ACA on its merits, but he can argue to voters that their votes are now the only way to rescind the law. Elections like this are where politics and policy belong.
Jonathan Hacker is a partner in O’Melveny & Myers LLP’s Washington, D.C. office and chair of the firms Supreme Court and appellate practice.
See also: “Lots of Work for GCs Before and After SCOTUS Health Care Ruling,” CorpCounsel, June 2012.
