Whenever the dignified Supreme Court brushes up against bare-knuckle politics, strange little sparks begin to fly. And it’s been a particularly sparky few weeks, between Hillary Clinton’s call for a Citizens United litmus test for future Supreme Court nominees and President Barack Obama’s warning shots at the court this week, more or less spanking them for even agreeing to hear the Obamacare challenge King v. Burwell.
It is never a surprise when politicians insert themselves into the life of the court, although, as Jess Bravin at the Wall Street Journal reports, Obama has made it something of an art form. But more interesting are the ways in which the court has, intentionally or not, inserted itself into the heart of the 2016 presidential election. In a way we have not seen since five justices in Bush v. Gore picked the president in 2000, the court may be making itself the cornerstone of the upcoming election.
Despite the justices’ mandate to ignore the politics of the day, there must be some real pressure on the court—and perhaps more specifically the conservative justices—to contemplate the potential political fallout from at least one of the term’s blockbuster cases: the Obamacare challenge. There is an emerging consensus, across ideological lines, that if Obama loses on King v. Burwell in the next three weeks, the bigger loser will be the GOP. As the National Review put it last week, “If a Supreme Court ruling against Obama turns into a hollow victory for conservatives, congressional Republicans could be in for a bloodletting.” Why? If the court rules that only those on state-created exchanges are eligible for subsidies, and Republicans in the statehouses and on the Hill don’t find a fix, nearly 6.4 million Americans would be impacted, and their health care costs could spike by almost 300 percent. And if they do come together to build a fix? As former GOP strategist John Ullyot told the Hill, “Republicans are in the position of having to create a fix that would be seen as a problem by their most conservative supporters.” Propping up Obamacare is the last thing their base wants to see them doing, especially in an election year.
And it’s not just the mostly Republican governors, or the GOP senators who have to defend their seats in those 34 states that may see their exchanges collapse, who are concerned. Prospective GOP presidential nominees are also worried about what happens if millions of Americans—many Republicans—lose their health care in the next two weeks. As David Frum put it after oral arguments, if the court strikes down the subsidies in King, there will be “an ever-greater number of people for whom the risk of loss of health coverage will be an overwhelming consideration. It would seem an obviously [sic] urgency for Republicans to relieve as much of their anxiety as they can. Yet few Republicans perceive that urgency and even fewer are acting on it.” Both Justices Samuel Alito and Antonin Scalia hinted at those same oral arguments that this urgent political and social crisis could be fixed—by delaying the effective date of the decision, or congressional action, respectively. The latter idea was met with outright laughter in the gallery.
Then there are the marriage cases. As Greg Stohr points out in Bloomberg, the same calculus surrounding a conservative win in the King case also holds true with respect to the marriage equality cases. If the court’s conservatives rule against marriage equality this month, it will be a disaster for the GOP in 2016. As Stohr explains: “[R]uling against gay marriage would make the issue a focal point for the 2016 general election, leaving Republicans to argue against a right supported by six in 10 Americans.” The most recent Gallup polls reflect that support, with 60 percent of Americans in favor of marriage equality and 37 percent opposed. Not to mention that 36 states already allow for same-sex marriages. The conundrum the GOP faces in both King and Obergefell v. Hodges is that a conservative win would pit moderate conservatives and independents—who may have grown to like their health insurance and don’t hate same-sex marriage—against the base.
But there is one more level to the chess game the conservative justices must be playing right now, as they debate over whether to plunge the Supreme Court into the epicenter of a presidential election that is bound to be as ugly and polarizing a race as any we can imagine. This one goes beyond judicial ideology, or even brass-tacks party politics, and hits at the very core of each justice’s ego. Because the justices aren’t merely poised to place their thumbs on the scale to determine which party wins the White House in 2016. Several of them may also be helping elect the president who will pick their successor.
Recall that this is a really, really old court. Justice Ruth Bader Ginsburg is 82. Justice Anthony Kennedy is 78. Scalia is 79. And Justice Stephen Breyer is 76. So when Kennedy and Scalia are pondering which formal rules of statutory construction they will deploy in reading four words in the Obamacare statute, somewhere at the back of their minds there must lurk the small, niggling thought: “Am I helping to elect the next President Hillary Clinton?” And under that thought there must lurk an even more sinister concern: “Oh my God. Am I helping to seat the next Justice Goodwin Liu?”
Now maybe none of the justices will allow this kind of insidious calculation to enter into their thinking as they set about drafting their opinions in both King and Obergefell. But whether they think about it or not, it’s hard to imagine a presidential election since 2000 that got itself up in the court’s pristine grill as much as the 2016 election will. Even justices who don’t think about politics in terms of stark wins and losses might be tempted to do so when it could mean that the president who will someday fill their seats can either dismantle their judicial legacies or bolster them. Yes, this is precisely the kind of ugly, human, partisan politics from which Chief Justice John Roberts most wants to distance himself and his court. It’s also precisely the place—where judging meets ideology, and legacy, and ego—at which the court reveals itself when it least wants to.