Gillespie: Despite media hype, Supreme Court rarely changes history
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So the Patient Protection and Affordable Care Act — aka Obamacare — has now passed the ultimate legal scrutiny.
By a narrow 5-4 decision, the Supreme Court has ruled that not only is the controversial mandate that all Americans must purchase health insurance fully constitutional, but so are all the plan’s other parts. The one notable exception is that the federal government cannot withhold funds from states that refuse to expand Medicaid according to Obamacare’s dictates.
We now know what it feels like when the Supreme Court decides what has universally been called “the single-most important decision” in the past 10, 25, 50 or even more years (I know, because I’m pretty sure I used all those time counts and more in covering the health care reform issue over the past two years).
As someone who opposed the law, I can say it doesn’t feel especially good. But here’s an unsettling truth that should temper bitter resentment, unrestrained ecstasy and any mix of feelings at today's outcome: The Supreme Court almost never changes the course of history.
It might speed up or slow down the direction in which we're headed -- and lord knows, it's made some genuinely terrible decisions over the years -- but the role the Court plays is mostly to certify social, cultural and political trends, not to start them.
When the Court signed off on constitutional protections for legal segregation in the odious 1896 decision Plessy v. Ferguson, it was tragically mirroring where the majority of Americans were regarding separation of the races. The same was true when the Court decided Brown v. Board of Education in 1954, which ended the practice. Even the hugely controversial 1973 decision, Roe v. Wade, which gave protections to abortion rights, was following a pronounced shift in attitudes toward abortion and the legalization of the practice in several states.
One of the few recent major cases where the Supreme Court appeared to be ahead of the curve was 1997's Reno v. ACLU, which tossed out most of the Communications Decency Act, a law with huge bipartisan support that would have effectively regulated the Internet like a broadcast network. The law would have strangled the nascent World Wide Web in the name of protecting children from unseemly online content.
As the Georgetown constitutional scholar Mark Tushnet has told me, "The Court can have some influence on the margins, pushing things a little further in the direction that they're already moving or sometimes retarding the direction." The bottom line, though, is that the Court is rarely if ever the prime mover in anything. As Tushnet figures it, "10 years down the line, the society's going to be pretty much where it would've been even if the courts hadn't said a word about it."
None of this is to say that the Court can't make better or worse decisions, or ones that are more popular or less popular. The 2005 decision Kelo v. New London, for instance, sanctioned governments to use eminent domain under virtually any circumstance, prompting a huge backlash at the state and local level to greatly narrow when elected officials might seize property for the so-called public good.
The plain fact is that the Supreme Court is never the last word on anything. Its justices "may not read the headlines," in the sense that they follow public opinion closely, but the court itself is generally a lagging indicator of what's really happening in the country. That's an insight that should give some succor to today's losers -- and temper the enthusiasm of today's victors.
Nick Gillespie is the editor in chief of Reason.com and ReasonTV and the co-author "The Declaration of Independents: How Libertarian Politics Can Fix What's Wrong with America."