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Judgment Day

Will the Supreme Court do the right thing?

The Affordable Care Act is the most important law enacted in at least a generation—the culmination of a reform effort, nearly a century in the making, to establish health care as a universal right. Now nine Supreme Court justices have the power to strike it down. Their decision, of course, will have major implications for the future of our country’s health care system. But it will also have major implications for how Americans view the Supreme Court.

The architects of American government wanted to protect individual liberty, from overzealous majorities and an overbearing federal government, so they insulated the Court from political influence and gave it final authority to say whether laws were constitutional. But overruling democratically elected officials is an inherently audacious act, which is why the justices must use their power in this regard thoughtfully. They should presume laws to be constitutional, just as trial courts presume accused criminals to be innocent. And they should at least try to put aside partisan loyalties and policy preferences, making a good faith effort to discern the Constitution’s meaning and to respect precedents.

Supreme Court justices have fallen short of this standard before, most recently in Bush v. Gore, a decision so self-evidently partisan and specious that the majority warned lower courts not to apply its logic in other cases. A ruling against the Affordable Care Act would also be unfounded—and perhaps even more damaging to the Court’s reputation.

The crux of the case is the law’s “individual mandate,” the requirement that nearly all Americans obtain health insurance or pay a fee to the government. Critics say it is an unprecedented violation of liberty—an argument few experts took seriously until very recently, and for good reason. Even the critics acknowledge that the individual mandate would be constitutional if only the law’s architects had called it a “tax.” They acknowledge that the mandate would be constitutional if applied at the moment people needed medical care, rather than beforehand. And they acknowledge that government-run insurance programs, like Medicare and Social Security, are perfectly constitutional—even though they are, by their nature, more disruptive of individual liberty than the mandate. Meanwhile, even some prominent conservatives believe the law is constitutional, consistent with precedents about federal power that date all the way back to the era of Chief Justice John Marshall. Among those conservatives are two of the nation’s most respected jurists, each of whom ruled in favor of the law when it came before their courtrooms last year.

The last time the Supreme Court took it upon itself to consider, and reject, such sweeping economic legislation was the early twentieth century, during the so-called Lochner era, when the Court invalidated laws that, among other things, established a minimum wage and prohibited child labor. Those decisions may still be celebrated by a very narrow subset of the conservative legal world; but they are not remembered fondly by mainstream historians or viewed as good precedent by the vast majority of legal thinkers. Are Justice Anthony Kennedy and Chief Justice John Roberts—the two apparent swing votes in this case—really prepared to return the Court to this tradition?

In recent years, American government has become gradually more dysfunctional, as lawmakers have dispensed with traditions like allowing majorities to rule in the Senate or putting some issues, such as lifting the nation’s debt ceiling, beyond partisan politics. The question of who is to blame for the collapse of these mores is a longer discussion for another time. (We place more blame on the right than on the left, though we certainly acknowledge that liberals have played a role.) What is beyond dispute, however, is that a five-to-four decision to invalidate the Affordable Care Act would signal another departure from governing mores—only this time it would be judges, rather than politicians, wreaking the havoc. It would further diminish the Court’s standing, in and out of Washington, and haunt the justices the next time they feel a law—whether a conservative or liberal one—demands judicial rebuke.

The policy consequences of overturning the Affordable Care Act, even in part, would be severe: Many millions of Americans would lose access to health insurance while many more would lose crucial consumer and financial protections. For some, it might literally be the difference between life and death. But the long-term effects on the Supreme Court’s legitimacy could also be devastating. If the former doesn’t sway members of the Court’s conservative majority, perhaps the latter will.

This article appeared in the May 10, 2012 issue of the magazine.