Given the amount of pushback, I decided to make my argument about legitimacy and the ACA at much greater length. A lot of people seem to think that this particular politically controversial decision with substantial elite support will somehow be different than the many other politically controversial decision with substantial elite support the Supreme Court has made. I don’t see it:
It is true that a decision striking down the ACA would inevitably be 5-4, which many legal observers believe would decrease the legitimacy of the decision. The problem here is that evidence that the vote lineup influences public or elite support for judicial opinions is scant. Consider the most divisive Supreme Court decisions in recent history. Miranda v. Arizona was 5-4, but that’s the exception. Brown v. Board and Cooper v. Aaron—both of which the directly affected states and their representatives not only bitterly opposed but refused to implement—were of course unanimous. Engel v. Vitale—the 1962 school prayer case that generated more hate mail than any case in the Warren Court era and also had serious implantation problems—had a mild solo dissent. Roe v. Wade was 7-2. It’s substantive results—not the number of dissents—that determines the reaction to Supreme Court decisions.
One potential counter to this is that a decision striking down the ACA would be different, it would be a 5-4 decision that would break down along strict partisan lines. By showing the Court to be nakedly political, it might undermine the Court in a way that previous rulings have not. My response to that would be simple: Kelo v. New London. The fact that the opinion was written by one Republican nominee and joined by two others didn’t stop it from being fiercely criticized by Republicans and sparking a legislative reaction in many states. And this makes sense when you think about it. In essence, the argument that the partisan breakdown changes things assumes an audience sophisticated enough to be aware of recurrent ideological vote patterns on the Supreme Court but unsophisticated enough to think that the Court is nonetheless apolitical if these ideological divisions map onto 1950s party coalitions rather than 2010s party coalitions. I’m not sure how big this audience is, but I’m confident that it could comfortably fit in a single-occupancy freshman dorm room. No conservative Republicans think of John Paul Stevens or David Souter as being on their team no matter who appointed them.
This is not to say that the Court can do anything it wants and remain its standing with elites and the public. A decision completely lacking in elite or popular support might have this effect. Unfortunately, this scenario wouldn’t describe a decision striking down the ACA. Such a decision would have the strong support of the political party that controls the House of Representatives and 48 seats in the Senate, and if current polling holds up would have the support of a majority of the public as well.
I also think some people are way too optimistic about the policy that would emerge should the Court just strike down the mandate, but…well, read the whole etc.