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Supreme Court in a no-win position on Obamacare? | THE JEENYUS CORNER

Supreme Court of the United States Seal

Supreme Court of the United States Seal (Photo credit: DonkeyHotey)

By David Gergen, CNN Senior Analyst, and Michael Zuckerman, Special to CNN

(CNN) — Seventy-five years ago, Franklin Roosevelt launched a crusade against the Supreme Court, angry that it was overturning important New Deal initiatives.

Though his “court packing” plan went awry, the court (and particularly Justice Owen Roberts) did swing behind the popular president, protecting both themselves and the New Deal — “the switch in time that saved nine,” as the saying went.

Ever since, it has been widely assumed that the Supreme Court keeps a close eye on public opinion. Indeed, among the papers of the late Justice Harry Blackmun, historians found that the late Chief Justice William Rehnquist andother justices had an office pool going for the 1992 presidential election, betting $1 on each state. (Sandra Day O’Connor apparently won.)

And so it is that as the current Supreme Court prepares its momentous decision expected this month on the Affordable Care Act — widely known as Obamacare — experts wonder how much public opinion will sway the court’s ruling. Except that in this case, the court will be in a no-win position if it plays to the bleachers. That’s why the real question is: On what basis should the court truly act? And on what basis should the media, politicians and the country then react?

David Gergen

Michael Zuckerman

Court finds itself in a bind

Consider the quandary the high court faces in trying to keep the public on its side.

Last week, a New York Times/CBS poll revealed that a majority of respondents — 68% — believes the individual mandate to buy health insurance, the central feature of the law, violates the Constitution and wants the court to overturn the law in part or in whole. Even a plurality of Democrats (48%) want a partial or full overturn. So if the court decides to uphold the law, it will sharply contravene current public opinion.

But what if the court indeed decides to strike down the mandate and possibly other parts of the law? In the near term, yes, that could be widely welcomed by the public. But over time it could stir up a different fire, one that could do further damage to the reputation and prestige of the court.

Despite its occasional waywardness, the Supreme Court has traditionally been viewed as the least partisan and most independent of the three branches of government. That in turn has built a reservoir of public trust so that, in controversial cases, most Americans believe that the justices have worn a blindfold, carefully weighing the law of the land. Thus they respect the law, an important source of legitimacy for our only nonelected branch of government.

To encourage this judicial independence, we give our justices lifetime appointments: we are meant to be, in John Adams’ famous phrase, a “government of laws and not men.” Chief Justice Roberts gave voice to this tradition in his 2005 Senate confirmation hearings when he compared the position of justice to that of a baseball umpire: a critical role, he noted, but “umpires don’t make the rules; they apply them.”

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