Deep in the marbled chambers of the majestic Supreme Court building, members of the High Court and their clerks are hard at work on the opinion — or more likely, opinions — to be published when the Court decides the constitutionality of the “health care reform” legislation. The opinion(s) will be issued within the next week or two as the Court wraps up its work for the year.
The issues swirling around President Obama’s signature legislative achievement have dropped off the public’s radar screen recently, but you can bet that they remain front and center at the White House, the Romney campaign headquarters, and on Capitol Hill. Whether the Supreme Court upholds the statute, or strikes it down in whole or in part, its decision will be like a bomb going off in the middle of the presidential campaign. I can’t remember another situation like this, where the Supreme Court will decide the constitutionality of major, controversial legislation — and do so only a few months before a presidential election in which the Court’s decision itself will almost certainly be an issue.
The timing of the Court’s decision will be interesting for two reasons. First, both carefully scripted campaigns will be knocked off message, for a few days at least, and will be required to respond on the fly to the Court’s decision and the stated rationale for that decision. The unpredictability of the Supreme Court’s decision means we might just get an honest, candid reaction from a candidate or a Congressman for a change — before the talking points get drafted and everyone adheres to the accepted party line for their side.
Second, and more important, Supreme Court opinions are serious documents written by serious people. The Justices know their opinions will be carefully read and critiqued, for their intellectual and legal merit, immediately and for decades to come. They will be working to make those opinions as persuasive and carefully reasoned as possible. The opinions will address fundamental issues about the structure of our government and the extent of federal power, taking into account the language of the Constitution, the history of our republic, and the decisions of prior Courts. They will grapple with those issues in a sober, respectful manner, with the majority and dissenting opinions acknowledging, and responding to, each other. What a refreshing change from the shouting, bullet point blather that passes for political discourse these days!
This will be an exciting time for our country and our Constitution. It’s another reason for us to step back, admire the foresight of the Framers, and see that our 225-year-old Constitution still works, and works well.