The Supreme Court should have taken a pass on Obamacare

March 29, 2012: 11:25 AM ET

Health care reform isn't much different from abortion or deadlocked presidential elections -- the constitutional basis for the justices weighing in on it is scant. What ever happened to judicial restraint?

By David A. Kaplan, contributor

Who should decide?

FORTUNE -- The battle formations for this week's momentous Supreme Court arguments on the health care law have been well-described. If you buy into the respective rhetoric, on one side you have the forces of big government, and on the other side are libertarian naïfs who haven't a clue how the health care system really works. In the Court itself, a ruling in a few months -- just as the presidential race enters its convention phase -- will likely explicate, more calmly, the doctrinal details of the Commerce Clause of the Constitution.

But the current Court case, Department of Health & Human Services v. Florida (Docket No. 11-398) should also be viewed more broadly -- against the backdrop of other signal cases that the justices have considered in modern times and did so at grievous institutional cost. Two such cases stand out: Roe v. Wade in 1973 and Bush v. Gore in 2000. In my view, both rulings -- involving entirely different subjects -- were wrong. Not because of the merits of the cases as such -- one on abortion and the other on presidential elections -- but because the justices shouldn't have been involved in the first place. The Court now risks another self-inflicted wound by attempting to resolve health care.

Roe was decided as various legislatures around the nation were struggling with abortion regulation. The Court had already struck down state laws banning the use of contraceptives -- for married and unmarried couples. Though a right of bedroom privacy wasn't mentioned as such in the Constitution, Justice William O. Douglas found that "specific guarantees in the Bill of Rights have penumbras, formed by emanations … that give them life and substance." Call that poetry or mischief, yet it's the kind of language that gives free-wheeling judges a bad name. Even so, the contraception cases could be rationalized as decisions about outrageous government "snooping" and within the reach of the Fourth Amendment's prohibition of "unreasonable searches and seizures." How else could the state enforce laws on private sexual activity? "Would we allow," Douglas asked, "the police to search the sacred precincts of marital bedrooms for telltale signs" of contraceptives?

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The perils of penumbras were exposed in Roe. Whatever else one thinks morally or politically about abortion (and I happen to favor very liberal laws on it), the constitutional basis for the Supreme Court weighing in on it is scant. Not only are the home and bedroom no longer involved, but at least arguably, there's a compelling competing interest to the "privacy" right being asserted: the right of the fetus. Reasonable people can, and do, disagree about how to recognize fetal rights, but surely such interests are not inconsequential. Under those circumstances, it might then be reasonable to assume that balancing maternal liberty against fetal potential ought to be left to democratically elected legislators. Who better to make formidable moral choices?

Nonetheless, the Court decided it would be the branch of government to decide -- forever removing the dilemma from "the people," who might over time reach different moral and political calculations. Reading a summary of his decision in the grand marbled courtroom across the street from Congress, Justice Harry Blackmun went on about "our awareness of the sensitive and emotional nature of the abortion controversy, of "the deep and seemingly absolute convictions that the subject inspires," and how "one's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training ... are all likely to influence and to color one's thinking." It was an astonishingly honest statement -- and might have been a moving presentation in the well of the Senate. Trouble was, he was a judge and his peroration never bothered to mention the role that constitutional law might play in deciding abortion. And so it was that the "right" to abortion became constitutionalized.

Nearly three decades later, the Right had its greatest jurisprudential revenge. When the presidential election of 2000 effectively turned into an electoral tie -- and the politicians and the lawyers turned Florida into a circus -- George W. Bush turned to the U.S. Supreme Court for vindication. While the Constitution itself, along with acts of Congress, explicitly established what to do in the case of an Electoral College tie or dispute -- and the 20th Amendment even provided for an "acting president" if nobody was selected by Inauguration Day -- the justices resolved that, no, that wasn't good enough. Instead, the justices had to intervene as deux ex machina.

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What was good for the Left, in Roe, was now good for the Right. If the constitutional reasoning in Roe was disingenuous, it was downright dishonest in Bush v. Gore. The idea that the nation required the Court to step into the breach to determine the election flew directly in the face of the power and legitimacy of Congress, the most democratic branch of government.

One can read the reasoning of the majority in Bush v. Gore, with its talk about the unfairness of Florida state procedures for counting disputed ballots. But all you mostly need to know comes from listening to the darling of the conservatives on the Court, Justice Antonin Scalia, who remarkably seemed to reveal the subtext of why the Court insinuated itself. In a 2008 interview on Charlie Rose, he explained: "We were the laughingstock of the world -- the world's greatest democracy that couldn't conduct an election. We didn't know who our next president was going to be…It was becoming a very serious problem." Just as Justice Blackmun knew best about abortion, Justice Scalia knew best how long it should take to pick a president. In short, the modern Court does because the modern Court can.

There are of course times when the Court wisely intervenes in political processes. Brown v. Board of Education, in 1954, remains the best example. The justices were unquestionably correct to declare segregation to be unconstitutional, despite state laws to the contrary. There were strong bases to do so: powerful social-science evidence of inequality in segregated schools; the broad language of the constitutional amendments adopted after the Civil War; and the Civil War itself. But Brown ought to be the exception rather than the model.

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Health care reform is no Brown v. Board of Education. After all the chatter about the Commerce Clause and federal power run amok, the case argued this week at the Supreme Court is pretty much just another example of losers in the political arena racing to the courthouse to undo their defeats. Just as the Court should have taken a pass on abortion, just as the Court should have left the presidential deadlock to Congress, so, too, should the justices leave health care to elected representatives.

The core problem with the justices being involved isn't so much how they in fact rule. At the end of the day, it's that they shouldn't be players in a political process. When they are, they make us a little, or a lot, less democratic. When some counter-majoritarian principles are involved -- free speech, safeguards for criminal defendants, anti-discrimination -- the Court's anti-democratic prerogatives are a valuable brake. Health care is hardly in the same category.

Conservatives love to rail about "judicial activism." Some justices themselves made it to the Court by preaching "judicial restraint" and deference to other branches of government. Now would be a fine time to see such slogans actually honored. Now would be a fine time to see the triumphalist legacy of Roe v. Wade and Bush v. Gore broken at long last. The Constitution would rejoice.

David A. Kaplan, who covered law and the Supreme Court over the course of 20 years at Newsweek, wrote The Accidental President, a book on the 2000 presidential election and Bush v. Gore. HBO's Emmy-winning film, "Recount" (2008) is based on his book and others.

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