Obamacare Will Be at Center of High Court Hearing

The retirement of Justice John Paul Stevens means that in coming months we'll have another hearing on a Supreme Court nominee. But it's not likely to be the sort of hearing we got used to in the two decades after Edward Kennedy declared war on Robert Bork in 1987.

Nomination fights in those years centered on the issue of abortion. Many Republicans hoped and most Democrats feared that Republican nominees would vote to overturn Roe v. Wade. Democrats launched ferocious and often unfair attacks on nominees like Bork, Clarence Thomas and Samuel Alito. Republicans defended them warily, but refrained from launching similar attacks on Democratic nominees Ruth Bader Ginsberg and Stephen Breyer.

These were arguments over a political issue of little practical effect but great moral content.

While the issue of whether to criminalize abortion tended to favor Democrats, the political issues that now raise constitutional questions tend to favor Republicans.

A reversal of Roe v. Wade would allow states to criminalize abortion, but only a few--Utah, South Dakota, Louisiana, Guam--would have done so; abortion would have remained widely available. But the feminist left and the religious right believed that important moral principles were at stake.

This was a period when the demographic variable that most highly correlated with voting behavior was religion, or degree of religiosity, and the issue that seemed to be most critical to voting choices was abortion. Given the court's activism in deciding abortion cases, it was inevitable that nominations would be hard fought over the abortion issue.

Those days are over. We didn't hear much about abortion when Barack Obama appointed Sonia Sotomayor last year, and not just because the president was replacing one pro-Roe justice with another.

More important, the public's issue focus has changed. And while the issue of whether to criminalize abortion tended to favor Democrats, the political issues that now raise constitutional questions tend to favor Republicans.

Those are issues raised by the big government programs of the Obama administration and Democratic congressional leaders, in particular by the health care legislation they jammed through Congress despite huge public opposition last month.

One is the constitutionality of the health care bill's mandate to purchase private health insurance. The federal government has never before commanded citizens to buy a commercial product. Could the government command you to buy breakfast cereal?

Some 14 state attorneys general are trying to raise the issue in court, and pending state laws outlawing mandates could raise the question as well. Those state laws are obviously invalid under the supremacy clause unless the federal law is unconstitutional. Is it?

I would expect an Obama nominee to decline to answer. But Republicans may not take such a response as meekly as they did when Ginsberg declined to answer dozens of questions back in 1993. They might press harder, as they did in 2009 when they prompted Sonia Sotomayor to declare, to the dismay of some liberal law professors, that she would only interpret the Constitution and the law, not make new law. Just raising the health care mandate issue helps Republicans given the great and apparently growing unpopularity of the Democrats' legislation.

Another set of questions could prove embarrassing for Democrats who have lauded Griswold v. Connecticut and Roe v. Wade for creating a right to privacy that includes contraception and abortion. "How can the freedom to make such choices with your doctor be protected and not freedom to choose a hip replacement or a Caesarean section?" asks former New York Lt. Gov. Betsy McCaughey in the Wall Street Journal. "Either your body is protected from government interference or it's not."

McCaughey also notes that in 2006 the Supreme Court in Gonzales v. Oregon ruled that the federal government couldn't set standards for doctors to administer lethal drugs to terminally ill patients under Oregon's death with dignity act. So does the Constitution empower the feds to regulate nonlethal drugs in contravention of other state laws?

Such questions may not persuade an Obama nominee to rule that Obamacare is unconstitutional. But they can raise politically damaging issues in a high-visibility forum at a time when Democrats would like to move beyond health care and talk about jobs and financial regulation. Stevens apparently timed his retirement to secure the confirmation of a congenial successor--but some Democrats probably wish that he had quit a year ago when they had more Senate votes and fewer unpopular policies.

Michael Barone is a resident fellow at AEI.

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