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[Albert R. Hunt] High court may wade into election-year politics

A familiar pattern of past presidential elections is that early in the cycle both parties gin up their base with warnings about dire consequences if the other side controls the next Supreme Court selections; after a few well-timed speeches and fundraising appeals the matter is usually ignored by the electorate.

Next year could be different by becoming the first time since 1968 that the Supreme Court is a central issue in the American national elections.

The high court in the 2011-12 term could decide the constitutionality of President Barack Obama’s health-care initiative; the right of same-sex couples to get married, and if states such as Arizona can fashion their own anti-immigration laws. Each of these issues is controversial and emotional for many Americans.

While it’s possible the court won’t take up these cases next term, odds are that at least one, maybe all three, will be decided.

“The possibility of a health care ruling, along with gay marriage, the Arizona immigration law and maybe revisiting affirmative action on higher education, all leading into the summer conventions and fall campaigns,” says Stephen Wermiel, a longtime court watcher and author of a biography of Justice William Brennan, “could create political dynamite with the Supreme Court on center stage.”

The politics would be exacerbated by the unprecedented political divide on the court. In most all 5-4 decisions, four conservatives appointed by Republican presidents form one block and four liberals chosen by Democrats form the other. The swing vote is Justice Anthony Kennedy, who in the last term was in the majority 94 percent of the time.

Until 10 days ago, conservatives were guardedly optimistic that central elements of Obama’s health care law would be overturned. Then, a special panel of an appeals court rejected the argument of critics that the mandate in the law for everyone to have insurance is unprecedented because it forces someone to buy a product whether they want it or not. Supporters of the measure say that those who don’t buy health insurance and then get sick force an economic activity on others who have to pick up the tab.

What made this decision noteworthy is that one of the judges siding with the law was Jeffrey Sutton, a conservative who once was a law clerk to Justice Antonin Scalia.

This has thrown the conservative legal establishment into a tizzy as it tries to discredit or diminish Sutton’s argument. More likely it sends a signal to potential fence sitters like Kennedy or even to Chief Justice John Roberts.

Although public opinion divides on the Obama health plan, the rejection of the individual mandate by the high court could be a political hand grenade. In so doing it also would throw out the law’s prohibition on insurance companies denying coverage to people with pre-existing conditions, an overwhelmingly popular provision.

With this political reality and the Sutton decision the betting now is that Roberts ― who has shown no inhibitions about sweeping decisions that overturn precedents such as the evisceration of campaign-finance laws ― might step back. A historical parallel might be in 1937 when the Supreme Court, after a series of decisions overturning President Franklin Roosevelt’s New Deal measures and before any of that president’s appointees reached the bench, elected not to throw out the Social Security Act.

There are two major gay-marriage cases: The first is in California, where the State Supreme Court voided a gay-marriage ban that then was narrowly overturned by a referendum. The other is the 1996 Federal Defense of Marriage Act, which a Massachusetts court declared unconstitutional.

The California question is more sweeping: Are the rights of gays and lesbians to marry protected under the Constitution?

The Defense of Marriage Act declares that even in states where gay marriage is permissible, that legitimacy doesn’t apply for federal law and related benefits. This is a narrower case where gay rights and states’ rights coincide, making it easier for even a conservative justice or two to strike down the Defense of Marriage Act. That’s what should happen, says Obama, who has refused to defend the measure in court, and President Bill Clinton, who signed it into law fifteen years ago.

There are a number of immigration cases that could land on the court’s agenda.

Arizona’s attempt to crack down on illegal immigrants has been struck down by a judge. A harsher Alabama law takes effect Sept. 1, with proponents hoping they will get a friendlier hearing from a more conservative judiciary.

There may be a need to clarify, and anti-immigration advocates were heartened by a 5-to-3 decision in the last session when a separate case affirmed Arizona’s right to strip companies of their corporate charters for hiring illegal immigrants.

However, that authority was based on specific provisions of the 1986 immigration law approved by Congress. In general, the federal courts have held consistently that the U.S. government has the power to regulate immigration, and that states can’t form their own policies.

Whichever way the court rules on these issues will reverberate politically. Often, the initial benefit redounds to those on the losing side. That’s usually been the case with abortion; when the high court seems to be tilting to a more accepting view it energizes abortion opponents, and when decisions are more restrictive it helps the pro-choice elements.

Democrats are convinced that if the Supreme Court were to strike down Obama’s health care overhaul and gay marriage and uphold state anti-immigration statutes, it would energize their base in the same way liberal decisions benefitted Richard Nixon’s 1968 presidential campaign.

Mr. Dooley, the character invented in the late 19th century by the writer Finley Peter Dunne, once observed that the Supreme Court follows the election returns. Over the next year we may learn whether it also anticipates them. 

By Albert R. Hunt

Albert R. Hunt is the executive editor for Washington at Bloomberg News. The opinions expressed are his own. ― Ed.