Jon Rauch has an imaginary dialogued with the late Ted Kennedy in which he argues that a Supreme Court decision striking down the Affordable Care Act (a k a the PPACA) might actually be good for liberals. "If the Supreme Court guts another important law and conservatives cheer even louder," Rauch argues, "their credibility as advocates of [judicial] restraint will be shot.” And, in addition, striking down the PPACA would put us on the path to national health insurance. Perhaps, then, striking down the PPACA is something that progressives should secretly wish for?
Racuh's argument is a little bit different than contrarian arguments based on the legitimacy of the Supreme Court, but I don't find them any more convincing. First, Rauch's argument is a variant of the argument that judicial decisions produce a unique amount of backlash, which means an inevitable reference to Roe v. Wade:
You bet. Remember Roe v. Wade, the 1973 case that made abortion a constitutional right? At the time, it looked like a liberal win, but it was a poisoned chalice. It set off an anti-judicial, anti-liberal backlash that the right has been riding ever since.
The problem is that none of this is true. The "anti-liberal" backlash was well under way before 1973; the public legitimacy of the courts was not discernibly undermined; Roe itself was popular with the public; and abortion policy is almost certainly more liberal than it would have been without the Supreme Court's intervention. Since I don't believe in the unique backlash effect with respect to Roe, I don't believe it would apply to a decision striking down the PPACA either.
Second, with respect to Rauch's argument that the decision would be beneficial because it would undermine conservative complaints that they believe in "judicial restraint," this is also wishful thinking. If Bush v. Gore didn't do it, nothing will. The idea that conservatives believe in "judicial restraint" has never been true in any non-tautological sense, and indeed over the course of American history, judicial activism has been much more likely to be conservative than liberal. It's not clear that one more example will make a difference in undermining this myth, especially since the PPACA isn't terribly popular.
Finally, I also think Rauch is wrong to think that striking down the PPACA would necessarily lead to a system that is better from a progressive standpoint than the PPACA. As I've argued before, "the much more likely outcome is a less progressive version of the ACA, with the ranks of the uninsured made higher by spiraling insurance costs in the meantime." Striking down the PPACA won't diminish the influence that vested interests have over the many veto points new health care legislation needs to pass.
Rauch's contrarianism is an argument I'd like to think was right, but it isn't. Heightening the contradictions is something that rarely ends well, and I don't think a Supreme Court decision striking down the PPACA would be an exception.
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