Filed by KOSU News in Politics.
June 1, 2012

In just a few weeks, a decision is expected from the Supreme Court on the constitutionality of President Obama’s health care law. Some legal analysts expect the justices to strike down the law, or at least the controversial individual mandate. And whatever the court decides, it could come in a 5-4 decision.

A few of these analysts discussed the implications of a split decision in this high-profile case with NPR’s Neal Conan Thursday on Talk of the Nation.

“[Chief Justice John] Roberts came into office telling me and other journalists that he would make it his goal as chief justice to promote consensus and avoid 5-to-4 decisions,” Jeffrey Rosen, legal affairs editor of The New Republic, said on Thursday’s program. “He said it was bad for the court and bad for the country in a polarized time for the court to divide along ideological lines. He thought it was a special opportunity in a polarized age for the court to rise above politics.”

Closely divided Supreme Court decisions on major cases are nothing new, including 5-4 rulings in Bush v. Gore, the case that essentially decided the 2000 presidential election; and 2010′s Citizens United v. Federal Election Commission. That ruling held that political spending is protected speech even for unions and corporations, helping to open the way for today’s free-spending superPACs.

But last month, Rosen questioned “judicial activism” in the Roberts court in a story he wrote for The New Republic. Rosen argued that a 5-4 decision in the health care case would be an “irredeemable failure” for Roberts.

“If Roberts presides over a court that also strikes down health care by a 5-to-4 vote, I would think that everyone, including he, would acknowledge that his goal of promoting consensus had been a failure,” Rosen told NPR’s Neal Conan.

In a Washington Post op-ed, George Will dismissed Rosen’s concerns: “The public’s durable deference toward the Supreme Court derives from the public’s recognition that the court is deferential not to Congress but to the Constitution.”

Prominent legal scholar Randy Barnett, an architect of the challenge to Obama’s health care law, issued a response in the conservative legal blog The Volokh Conspiracy, stating that Rosen and “progressive” commentators are misguided, even threatening: “If the justices are perceived by the public as yielding to this overtly political media onslaught, it would fatally undermine the independence of the Supreme Court,” wrote Barnett.

Carrie Severino, chief counsel and policy director of the right-leaning Judicial Crisis Network, told NPR that political consensus isn’t the point of this case: “Consensus may be valuable in some cases,” she said. “But it is more important to get a correct answer. … I think the court will realize that having a decisive and correct decision is more important than having something everyone can agree on.”

On Thursday, Rosen said he still believes the court can reach the goal of being less partisan and more consensus-driven: “I have to say, I may be the last believer. I still embrace [Chief Justice] Roberts’ vision,” he said. “I think it was striking that it was just at the beginning of his term he thought he could pull this off, and gosh, things have proven to be much more polarized than he expected.”

Tinbete Ermyas is a producer with NPR’s Talk of the Nation. [Copyright 2012 National Public Radio]