Whittling away at NFIB v. Sebelius, the SCOTUS way

June 28, 2014 | By MIKE GARCIA

After the Supreme Court’s decision in NFIB v. Sebelius came out, David Franklin hailed Chief Justice Roberts’ decision in Slate Magazine.  The decision shocked many who thought Roberts would join the conservatives in striking down Obamacare, but Franklin praised Roberts for saving Court’s credibility, noting that “[a] 5-4 decision to strike down Obamacare along party lines, whatever its reasoning, would have been received by the general public as yet more proof that the court is merely an extension of the nation’s polarized politics.”

The attack on the Court’s integrity was not unfounded.  Just a month before NFIB was decided, President Obama himself commented that it would be a problem if “an unelected group of people would somehow overturn a duly constituted and passed law.”  And reporters everywhere lamented, for example, the Court’s decisions in Bush v. Gore as just too partisan.  The Court was seemingly losing its credibility with the public.

As poignant and clear as Franklin’s analysis might have been, though, it was a bit myopic and perhaps gave Roberts much more credit than he deserved.  The Court, as a whole, has an arguably rich history of avoiding controversy during the midst of public turmoil, only to come back a few years later to redress the same controversial issue under the cloak of another.

Take, for example, McConnell v. F.E.C., where the court upheld the constitutionality of the anti-free speech provisions of the Bipartisan Campaign Reform Act (often referred to as McCain-Feingold).  Justices Thomas and Scalia both (predictably) wrote scathing dissenting opinions, but just a few years later, Citizens United v. F.E.C. overturned some of the provisions in McConnell.  And although some of the Justices argued that Citizens United should have gone much further (as in, turning over McConnell completely), the majority walked the straight and narrow, addressing only the question brought before it.  In this way, the Court often chips away, little by little, at precedents that have strayed from thoughtful, constitutionally-sound reasoning based on a current, heated political atmosphere.

To use an example that hits a bit closer to home, Sissel v. U.S. Dep’t of Health & Human Services is a PLF case now pending in the D.C. Circuit.  Sissel contends that since Obamacare was deemed a tax under NFIB, its origination in the Senate, and not the House, violates the Constitution’s Origination Clause, which provides that “all revenue increasing measures” must originate in the House.  Even if Sissel loses, that doesn’t mean the Court won’t address the problems with the bill in a piecemeal manner in the future.

The big case on everyone’s mind now is Sebelius v. Hobby Lobby, expected to be decided on Monday, which challenges provisions in Obamacare that require companies to provide employees with insurance policies that include birth control.  Again, if the Court sides with Hobby Lobby, their decision could overturn a small provision in Obamacare, but will nonetheless chip away at the President’s central legislative achievement and signal a backtrack from the NFIB decision.  It would fit the pattern of this Court’s notion of “judicial modesty” to uphold a controversial law at the outset, only to strike down other portions of the law in subsequent cases.