Litigation

Health Care and Perceptions of the High Court

By Peter Hardin

A Supreme Court decision on the constitutionality of the new health care reform may be more than a year off — if the court tackles the issue.

Even so, a two-two split by lower courts on the issue — and the division of judges’ rulings along political lines of the president who appointed the jurists — is fueling questions by some scholars about whether a health care law decision by the highest court along partisan lines could affect its “prestige, authority and legitimacy,” according to a New York Times article.

?In the aftermath of Bush v. Gore, which no one has forgotten, this will be looked at in deeply partisan ways,? says Barry Friedman, a law professor at New York University. ?For the good of the republic, it?s better if it?s not 5-to-4.?

Nathaniel Persily, a law professor and political scientist at Columbia University, touched on the resilience of the high court after making controversial, split decisions. ?The Supreme Court has a deep reservoir of good will with the American people,? he said. ?The public?s attitudes toward the court have very little to do with individual decisions.?

Two Republican-appointed judges have ruled against the Obama administration on legal challenges to the law, and two Democrat-appointed judges have ruled for it (for background, see Gavel Grab).

In Newsweek, Ezra Klein wrote that if and when the issue reaches the high court, “Odds are the bill?s fate will come down to one person: Justice [Anthony] Kennedy.” Yale Law Professor Akhil Reed Amar wrote an op-ed in the Los Angeles Times with the headline, “Constitutional showdown: A Florida judge distorted the law in striking down healthcare reform.” The Detroit News editorialized: “Preserve limits on federal power.”

Full post as published by The Gavel on February 07, 2011 (boomark / email).