Jon Cohn has a good post about a subject that’s on a lot of minds given the hostile reception the ACA received at the Supreme Court this week: judicial legitimacy. It’s worth unpacking the different things this might mean. Certainly, from the standpoint of my personal normative evaluation, I agree with Jon that a decision striking down the ACA would not be legitimate. If you’re going to strike down the centerpiece legislation of an incumbent administration, you’d better have better arguments than were on display over the last three days. (I especially like the point that “if the justices strike down the Affordable Care Act, they would be stopping Congress and the President from achieving a constitutional goal via constitutional means just because they didn’t use constitutional phrasing to describe it.”)
Another element of the question, however, is whether a decision striking down the ACA would significantly effect the legitimacy of the Court among the general public. My guess is that it would not. Certainly, I doubt that the 5-4 margin would matter, and nor do I think the fact that the ideological fault lines of the court now map precisely onto partisan divides means much. I think Sandy Levinson is fundamentally right here:
So, when the five Republican conservatives decide how to vote, will they genuinely have to worry about a significant “backlash” against the Court in the country at large? The answer is almost definitely not. After all, the Republican base would praise the decision as “just what the Constitution means.” Another percentage would say something like “I ‘m not sure I agree with the decision, but, hey, I’m not a lawyer, and we hire the Supreme Court to tell us what the Constitution means, and even if they sometimes make mistakes, the country is blessed to have such an institution, and we should all accept its conclusion and move on.” Even partisan Democrats are likely only to fulminate, but how many will say, “You know, I think that Oliver Wendell Holmes and Mark Tushnet have gotten it right, and we should simply eliminate the very power of judicial review, at least with regard to any federal legislation. After all, we can always vote the congressional scoundrels out, but we don’t have that possibility with the politicians in robes who constitute the Supreme Court”?
Really, striking down the ACA isn’t even testing the far reaches of the Court’s power. The Court would have substantial support in Congress and, at least as of now, would appear to have the support of the majority of the public. I wish it weren’t so, but I don’t think the Court would face any significant loss of public legitimacy should they strike down the ACA.