The unusual two-part decision is already stirring up controversy, with outraged Republicans citing it as another example of judicial overreaching.

Salon asked the current chair of the American Bar Association’s committee on sentencing, Jim Felman, a practicing defense attorney in Tampa, Fla., to shed some light on the surprising Supreme Court news.

What exactly did the court decide and why was it a surprise?

The opinion is a little more complex than your typical Supreme Court decision. There were two issues presented in the case. The first issue is whether the United States sentencing guidelines violate the Sixth Amendment to the Constitution, which is your right to a trial by jury. [Previous to this decision] you would get charged with a crime, you would get a jury trial with respect to whether you’re guilty of that crime, but then the actual sentence you received for committing that crime would be determined by a judge. And under the sentencing guidelines, the judge must increase your sentence if he finds to be true certain facts that were not presented to the jury.

So, for example, in a typical drug case, you may be charged with conspiracy to distribute cocaine. The amount of cocaine you distributed is not relevant for purposes of whether you are guilty of the crime. So all [the jury decides] is whether you distributed some amount of cocaine, ever. If the jury finds that you did, a judge will then decide — based on, frankly, hearsay and by a preponderance of the evidence, as opposed to admissible evidence beyond a reasonable doubt — what the quantity of cocaine was, and the quantity will drive the sentence.

So the first question is, is that OK, and a majority of five justices [Stevens, Scalia, Thomas, Souter and Ginsberg], in an opinion authored by Justice Stevens, said, “No, that sort of a process violates the Sixth Amendment.”

The second question presented in the case was what do we do about that? And most people anticipated that the court really had two options. The first option was to find that it’s really not possible to separate those parts of the statute that call for judge fact-finding and that violate the Sixth Amendment, and so as a result the alternative is just to find the entire statutory scheme unconstitutional and just wipe it out as a whole. That was one option that everybody thought they had.

A second option that I think everybody assumed that they had was to say this really is only unconstitutional as it is applied. There certainly are many cases in which there aren’t any upward adjustments [of the sentence] based on facts not found by a jury, and in those cases there really isn’t any problem, so there’s no need to wipe out the whole scheme. Instead, you could just basically say you can’t use those parts of the guidelines that call for upward adjustments without giving the jury a chance to be involved. You could put [the additional evidence] to a jury, which a lot of places were doing, or you could just not use it, which would result in quite a windfall for some defendants.

On the second issue, Stevens and three other justices from the majority on the first issue [Souter, Scalia and Thomas] opted for that second option: in other words, go ahead and put it to the jury, no problem. Justice Ginsberg, who joined Justice Stevens’ majority opinion on the first issue, broke ranks with that group with respect to the second issue.

In a pretty surprising and unpredicted move, a coalition of the four dissenting judges on the first issue [Breyer, Rehnquist, Kennedy and O'Connor] and Justice Ginsberg, in an opinion authored by Justice Breyer, answered Point 2 in a way that no one expected. And that is to ask the question: What would Congress have really wanted, had they known when they wrote this statute that parts of it would violate the Sixth Amendment? He concluded Congress would have wanted them to strike the parts of the guidelines that make them mandatory. And while he was at it, he also struck a part of the appeals provision, leaving behind an appeal remedy based on a standard of “reasonableness.” In other words, if an appeals court found that a given sentence was “unreasonable” they could overturn it. I don’t think anybody really expected that.

Is this a good or bad thing for defendants?

I don’t think there’s a lot in this case for the defense bar to complain about. Under Breyer’s remedy the harshness of the guidelines can be alleviated because some judges are going to say, “I’m just not going to do that.”

What does the “reasonableness” standard mean?

My best guess is it isn’t going to mean a lot. It would be pretty unusual for an appellate court to say that a particular sentence is unreasonable.

What does this mean then, practically speaking, for people who have cases moving through the federal system?

Cases fall into a bunch of different categories. For starters there are cases where people haven’t been charged, or they have been charged but they haven’t pled guilty yet. It’s now very difficult as an attorney to give such clients advice; it’s sort of like a return to the old days, where all you could tell your client is you could get as low as probation, or you could get as much as life. I can’t tell you which it is likely to be, I can only tell you that whatever it is we won’t really be able to complain about it much.

Some defendants may decide, in light of that uncertainty, that it’s in their interest to just go ahead and go to trial. So it’s at least possible that one effect could be more trials. And that’s going to depend a little bit on the reputations of the particular judges. There are going to be some judges who are going to react to this by saying, “Thank God, I’m finally rid of these guidelines, and I can sentence as I see fit.” And they may feel that way because they’ve always wanted to sentence higher, but more likely and statistically based, they’d be going, “Thank God, now I can actually impose more lenient sentences because these are too harsh.” There will be many other judges who will react to this by saying, “I’ve never really been thinking that what I’ve been doing all these years is all that wrong and I’m going to go ahead and follow the guidelines in most cases unless there is something about a particular case that just hits me wrong.”

So my sense is, at the end of the day, most people are probably going to be sentenced around the same point as before. It’s going to be the more marginal cases that really cry out for justice that maybe now finally will get it.

Now that’s for cases that haven’t been pled yet. What will be interesting to see is as follows: The government also will have lost some of their leverage, because they’ve always been able to entice people to cooperate with them and testify on their behalf against other people, because under the sentencing guidelines system, if they so much as tell the judge, “This particular person provided substantial assistance to us,” then the entire guidelines manual gets thrown out the window.

Prosecutors are going to lose some of their leverage. There is a provision in the rules that isn’t used very much now, that allows the prosecutor and defense to stipulate a specific sentence in a plea agreement. In other words I can enter into a deal that says I’m willing to plead guilty, and the government and defense agree that if I plead guilty, I get two years and three months in prison, and they put it to the judge and the judge can say up or down on that. A lot of judges don’t like those kind of agreements and won’t accept them on principle, because they want the discretion to do what they think is right after they hear about the case. The government has traditionally not liked to do that kind of thing either, because they just want to let the guidelines operate. Now that there’s a chance that people could get sentenced more leniently, it will be interesting to see if those kinds of agreements come back into vogue and whether prosecutors might think to themselves, I want to make sure the guy gets at least a year in jail or two years in jail, and they are willing to stipulate to that. And defendants might want that kind of agreement because it gives them a greater sense of certainty. But in general one could expect that there will be more trials, because it is less clear what the advantages are to pleading guilty.

Wednesday’s decision follows upon on a decision last summer, Blakely vs. Washington, in which the Supreme Court overturned Washington state’s sentencing guidelines. How does that affect the chances of defendants?

There are a bunch of cases where people were sentenced after Blakely and in which they objected to the guidelines citing the Blakely decision, and the judges overruled their objections, but they appealed and the appeal is pending. In situations like that where the issue has been raised, and it has been properly preserved for appeal, I would think virtually every one of those people will get a new sentencing hearing. So for sure there will be some people who will get a new sentencing hearing at which they get a new sentence. It’s just impossible to know how many people are in that category.

The big category that everyone is talking about is the people who have already been sentenced, but didn’t cite the Blakely decision in an appeal, or they were sentenced before Blakely and they don’t have an appeal pending. They’re sitting in jail, having been sentenced under a procedure that we now know was unconstitutional and they are going to want to bitch about it. There is going to be a flood of prisoner petitions that are going to start being filed. And the question is then going to be, does this opinion apply retroactively?

That’s a really complicated legal question. It turns essentially on how obvious was this result? If this case was just a straightforward application of existing precedent then it should be applied retroactively. And there are certainly parts of Stevens’ opinion that make it sound like, duh, this is just the same as we said in Apprendi vs. New Jersey and Blakely vs. Washington. It’s straightforward and ought to be applied retroactively. But there are other parts of Breyer’s remedial opinion that suggest that this is not going to be clear-cut and that this is novel and unprecedented, etc., etc., and so it should not be applied retroactively.

As a practical matter I’m kind of cynical and I think courts are unfortunately mindful of what the political results are of their rulings. And there will be tremendous political pressure on them not to apply this retroactively, just because of the floodgate of relief that would flow from that and the adverse public outcry: We’re letting people out of prison and whatnot. My prediction about what will happen — without regard to the legal merits of it — is that there will not be many people who get relief due to any sort of retroactive application of this decision. There are going to be a lot of petitions filed, but not too many of them granted.

How do you think this will play out politically?

It depends on the Republicans on the Senate Judiciary Committee. I think it will be very important what Arlen Specter thinks, because I think if history is any guide, the House is dominated by Republicans of a particularly anti-judge bent. They are already making noises about the opinion. They are hot. They are not going to want to let this state of affairs continue, and they are going to want to move, and probably want to move quickly.

But I think cooler minds may prevail on the Senate side. The Democrats on the Senate side have already come out and said let’s not rush to judgment here, let’s let this play out. I think their inclination is to say, let’s let the guidelines be advisory for awhile and see what happens. Maybe the judges will actually continue to follow them for the most part and maybe everything will work out just fine.

So the real question mark is, what will be the mood of Orrin Hatch or Arlen Specter? Are they going to be pressured by their more hotheaded friends in the House to act quickly, or will they be more willing to learn what we might be able to learn by allowing this system to be in place for a little while.

The real story here is just the incredible pissing match going on between Congress and the courts. It’s nasty, and the people who are going to get caught in the crossfire are the defendants. The Congress has basically said we don’t trust you judges. Breyer’s remedial opinion, as Scalia points out, is so ironic, because in the name of divining what Congress would have wanted with respect to its statute that eliminated judicial discretion, he went ahead and eliminated the part that made it mandatory.

They’re pretty rightfully pissed off. Breyer’s analysis that you get to excise out the part of the statue that makes it mandatory is unprecedented. That part of the statute doesn’t violate the Constitution. It isn’t the mandatory part that makes it unconstitutional, it’s the part that says you can do it without putting it to a jury that makes it unconstitutional. So what he did, which is so novel and so unprecedented and so frankly intellectually not compelling, is to rewrite the statute; in essence he said, “Rather than strike out the part of the statute that makes it unconstitutional, I’m going to strike a different part of the statute, that everybody agrees is constitutional so that the result of it will be to save those other parts of it that are unconstitutional.” That’s unprecedented, as far as I can tell.

But if the Supreme Court has declared that mandatorily making upward adjustments to a sentence violates the Sixth Amendment, what could Congress do in response? Isn’t the Supreme Court the law of the land?

Congress has a number of options. It’s still up to Congress to set the sentencing range, so they could pass a law that sets the top of every range at the maximum penalty. In other words, basically judges could give the maximum penalty for no reason at all. The ironic part is that that would end up giving judges discretion, which Congress doesn’t really want, but only at the high end, not at the lenient end. Or they could just set a whole bunch more mandatory minimums. Mandatory minimums have not been declared unconstitutional. They could release a blizzard of mandatory minimums for all sorts of crimes. I think this would turn out to be more trouble than they imagine, but they still could do it.

Best-case scenario, they could just come up with a much simpler version of the guidelines and require that they put them to the jury. But I don’t think that will happen.

Prof. McConnell’s essay includes some uncharacteristically sloppy statements, as Sam Bagenstos points out. But he asks a good question: Why didn’t the Democrats see this trouble coming?

I’m now working on a book on the constitutional objections to the Affordable Care Act, which will be published in the spring of 2013 by Oxford, and I’ve been researching this very question. What I’ve found may be surprising.

The constitutional limits that the bill supposedly disregarded could not have been anticipated because they did not exist while the bill was being written. They were invented only in the fall of 2009, quite late in the legislative process.

The first exploration of Congress’s authority to enact a mandate was a paper by Mark Hall, which he posted on SSRN in February, 2009. (I have not been able to find even a hint of the constitutional objection before Obama’s election, even though mandates have been proposed, mainly by Republicans, since the early 1990s.) He concluded that the mandate easily followed from existing commerce clause jurisprudence. His piece is extensively footnoted, but it cites no authority to the contrary. Republicans had no constitutional objections. Senator Charles Grassley said in June 2009, “I believe that there is a bipartisan consensus to have individual mandates.”  (He later changed his mind.)

The first published claim of unconstitutionality that I have been able to find is a July 10, 2009, Federalist Society paper by Peter Urbanowicz and Dennis G. Smith. They created the now notorious action/inaction distinction, declaring that “Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.” But they made only a modest effort to rebut the obvious response based on text and precedent, and their bottom line was that a mandate “might be susceptible to an ‘as applied’ challenge from individuals who (1) never access the health care system or (2) are able to pay for their health care without using insurance.” Not only does this not suggest a facial challenge of the kind that the Court is now considering — even they weren’t that bold — but the hypothetical individuals are fanciful.  No one who is not a multimillionaire can know for certain that they will be able to pay for all their future healthcare needs out of pocket.

On July 14, the House committees generated a unified healthcare bill, and the next day the bill passed the Senate Health Committee. On July 24, a Congressional Research Service memo, determinedly evenhanded, declared that the power of Congress to require the purchase of a good or service was “a novel issue.”  It, too, developed no substantive argument for unconstitutionality.

An August 17 blog post by Rob Natelson offered a litany of briefly stated constitutional objections, most of which were never heard from again. It was quoted sympathetically, but without elaboration, by David Kopel on the Volokh Conspiracy blog – the first post on that blog to suggest that there could be a constitutional issue. (The importance of the Volokh blog to the healthcare issue has already been noted, here.) On August 22, David Rivkin and Lee Casey wrote a Washington Post op-ed declaring that “[t]he federal government does not have the power to regulate Americans simply because they are there.” There were some follow-up posts on Volokh Conspiracy by Jonathan Adler and Ilya Somin, both of whom reluctantly concluded that the bill was clearly authorized by current law. (Both later changed their minds and will now tell you that the mandate is obviously unconstitutional!)

On Sept. 18, Randy Barnett entered the fray for the first time, with a post on Politico and a follow-up on Volokh. Suddenly the meme went viral. On Sept. 21, CBS News reported that, “In the last few days, a new argument has emerged in the debate over Democratic healthcare proposals.” CBS observed that the O’Reilly Factor and Fox News had picked up on the story. Suddenly there was an outpouring of pieces, on Volokh and elsewhere, developing the constitutional objection. But even at this point it was a soundbite, not a legal argument.

The bill passed the Senate Finance Committee on October 13, and the full House of Representatives on November 7.

The first sustained legal argument was published by Barnett and two coauthors in a Heritage Foundation paper on Dec. 9, 2009. This was no casual blog post. It carefully engaged the cases and the literature and closely tracked the argument that eventually was brought before the Court. Barnett deserves the credit he has gotten: Like so much of his work, the argument was witty, sophisticated, creative and clever. There had been nothing like it before. But it had little basis in existing law, and its flaws came to light almost immediately. Rivkin and Casey made a similar argument (which didn’t add much, on the crucial commerce power issue, to their earlier op-ed) in a piece (undated) on the Pennsylvania Law Review’s web edition. Jack Balkin wrote a devastating reply, to which Barnett posted a link and response on Dec. 11.

None of these writings said much about the most powerful basis for Congress’s authority: its broad power under the Necessary and Proper Clause, which has been well established since 1819. Barnett’s paper was a work in progress. By the time he wrote his Supreme Court brief in February 2012, he implicitly acknowledged this unfinished business by struggling for more than 30 pages with the problem.

The bill passed the Senate on Dec. 24. The rest of the story is familiar: On January 19, 2010, Scott Brown surprisingly won the special Senate election in Massachusetts, depriving the Democrats of their filibuster-proof majority. It took some time for them to figure out how to respond, but the legislative obstacles were surmounted, and the bill was signed in March 2010.

The Democrats might, I suppose, have jettisoned the mandate. Certainly by early 2010 they knew that constitutional arguments were being made. McConnell suggests that “the drafters of the legislation should have stayed within the generous bounds of authority established by prior precedent.” But that’s just what they did do. As Balkin noted in July 2010, Barnett was trying to shift the boundaries of what counted as an off-the-wall argument.

Dropping the mandate also would have defeated one of the law’s primary purposes. A Congressional Budget Office report indicated that eliminating it would raise the uninsured population in 2019 by 16 million, with insurance rates rising by 15 to 20 percent for those who bought insurance individually. McConnell thinks that the Democrats have only themselves to blame, because they did not toss these people over the side as soon as there was a whisper of a constitutional issue. As the oral argument made clear, the case against the mandate requires a remarkable degree of callousness, obsessively focusing on the minor burden imposed by the mandate while determinedly ignoring the fact that the unavailability of insurance kills thousands of people annually. Now we are told that the Democrats were unreasonable because they did not immediately capitulate to their opponents’ newly crafted assumption that this callousness is written into the Constitution.

To say that the Democrats have only themselves to blame for not anticipating these newly minted constitutional claims is like saying John F. Kennedy had only himself to blame for not getting a second term as president because he should have anticipated Lee Harvey Oswald.

Much is being made of Toobin’s revelations about the dramatic internal political divisions and infighting within the court triggered by the CU decision (more on that later). But what I think is most politically significant in Toobin’s piece is that it shows the dramatic rightward – and backward — march of Republicanism over the last 30 years. In January 1982, Ronald Reagan famously wrote in his diary, “The press is trying to paint me as trying to undo the New Deal … I’m trying to undo the Great Society.” Reagan was anxious to unravel the anti-poverty programs Lyndon Johnson pushed into place (though not Medicare), but he collaborated with House Speaker Tip O’Neill to pass payroll tax increases to stabilize Social Security for the next 50 to 60 years.

Today’s Tea Party, of course, is going after what’s left of the Great Society and the New Deal too, trying to privatize Medicare and Social Security and undo the labor protections passed by Congress and many states in the wake of the Great Depression. But the Roberts court wants to go back even further, to the Progressive Era, when some politicians in both parties recognized that the omnipotence of Gilded Age robber barons had to be curbed – and that campaign finance regulation was a good place to start.

Back then a conservative Supreme Court majority also disagreed with that Progressive reform push. In an 1886 tax case it first held that the 14th Amendment’s equal protection laws applied to corporations. In its 1905 Lochner ruling, striking down a New York law limiting bakery workers to a six-day 60-hour week, it declared such regulations a breach of contract rights, an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” As Toobin observes, “In simple terms, the majority in Lochner turned the Fourteenth Amendment, which was enacted to protect the rights of newly freed slaves, into a mechanism to advance the interest of business owners.”

Progressive era reform also included campaign finance regulation, starting with the 1907 Tillman Act, which prevented corporations from directly contributing to campaigns. The Court let the act stand, but over the years a series of rulings by conservative majorities have managed to establish that money is “speech,” and though contributions could be regulated, expenditures – speech – could not.

Toobin shows decisively that the court could have kept its decision on Citizens United quite narrow. Attorney Theodore Olson wasn’t seeking to strike down McCain-Feingold, but to clarify that it applied to television commercials, not to 90-minute political “documentaries” such as “Hillary: The Movie” (a shriekingly negative “documentary” on the woman who was expected to be the 2008 Democratic presidential nominee). But in oral arguments the conservative justices sought to broaden their purview, and Roberts helped them along. “As the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party,” Toobin writes. “Roberts’s choice was: a lot.”

After taking a shot at drafting the CU ruling himself, he later assigned it to “swing vote” Anthony Kennedy, whose views on campaign finance regulation reliably put him with the conservative majority. Assigned to write the dissent, outgoing Justice David Souter accused Roberts “of violating the Court’s own procedures to engineer the result he wanted,” Toobin says. That’s when Roberts took the extraordinary step of asking that CU be re-argued – though with five justices already committed to a sweeping attack on McCain-Feingold, the outcome of those re-arguments were never really in doubt.

And indeed, Kennedy again wound up writing the majority opinion, which found that “The Court has recognized that First Amendment protection extends to corporations” since 1886, and that in McCain-Feingold “the Government has muffled the voices that best represent the most significant segments of the economy.” It’s unclear from the context whether Kennedy is saying what he seems to be – that corporations “best represent the most significant segments of the economy.”

Justice John Paul Stevens, a moderate Republican once on the court’s more conservative end, wrote in his dissenting opinion, “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Stevens’s dissent continued for a record 90 pages.

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

Toobin’s conclusion is no less scathing: “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.”

It’s worth noting that the most spirited opposition to Citizens United is coming from Montana, where the ties between Gilded Age corporate abuse and campaign finance regulation are perhaps the most explicit. Copper mining interests essentially owned the state in the late 19th and early 20th century, but Montana Progressives pushed a tough campaign finance law as a way of clawing back control of their state from the “copper kings,” who Mark Twain wrote “bought judges and legislatures as other men buy food and raiment.” Montana’s state Supreme Court upheld that 1912 “Corrupt Practices Act” in January, putting the state on a collision course with SCOTUS. Gov. Brian Schweitzer has been one of the most articulate voices against Citizens United, and supports a state ballot initiative that would ban corporate money in politics and make it state policy that corporations are not people.

“Montana’s going first, but we have before,” Schweitzer told the Huffington Post earlier this month. “It was Montana in 1912 that banned corporate money from our elections. We don’t mind leading and we believe it has to start somewhere. This business of allowing corporations to bribe their way into government has got to stop.”

But in a world where the Citizens United decision is precedent, it’s hard to imagine that ballot measure surviving a legal challenge. Toobin’s piece makes clear the stakes in the 2012 presidential race as vividly as anything else does: American democracy can’t survive the appointment of more justices like Roberts, Sam Alito and Antonin Scalia, who mainly serve the interests of corporate America. Mitt “Corporations are people, too, my friend” Romney can be expected to give them company in the years to come if he wins the White House.

Marcus, though, is stopped cold.

And yet, Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”

Judicial review, as a former constitutional law professor certainly understands, is not in the Constitution — an unelected activist judge made it up! — and the founders themselves disagreed on the wisdom of the principle. (They tended, in fact, to decide whether or not they liked judicial review based on whether or not the judges ruled in a way that they approved of.) The history of the Supreme Court is replete with nakedly political and mostly conservative rulings until very recently, when we had a brief period of liberal-leaning rulings from a marginally more diverse group followed by a return to status quo conservatism.

As long as the Supreme Court has been making awful and indefensible rulings based on ideology or racism, presidents and politicians have been criticizing the court. Abraham Lincoln attacked the Supreme Court in his first inaugural address, in a passage that conservatives love to quote when they’re attacking “activist judges.”

At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.

I am stopped cold and unsettled!

Marcus, hilariously enough, supports the healthcare law and the mandate — she is the world’s most sensitive milquetoast moderate liberal newspaper columnist, after all — which theoretically means she thinks it’s constitutional, which would mean that declaring it unconstitutional should maybe upset her more than criticizing the court for being political, but on the other hand those judges seem very smart and our entire system of government could collapse if we aren’t all super polite to one another and constantly deferential to authority.

I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.

Yes, I could tell they were very seriously wrestling with a difficult constitutional question when Scalia began joking around about broccoli mandates and the legendary “Cornhusker Kickback.”

I’m not sure what more the Supreme Court could do before moderates like Ruth Marcus finally acknowledged that it’s a partisan body with a right-wing majority. If Bush v. Gore didn’t do it, maybe nothing could. But as a partisan body it is open to partisan attacks, and our fragile democracy will not descend into anarchy if people think as poorly of the Court as they currently do of Congress.

Of course, the Republican talking point is that the president is attempting to bully the Court into ruling the way he wants. (Because if they strike down the law, he’ll … yell at them during the State of the Union again? No one seriously predicts an arrest warrant for Chief Justice Roberts here.) Mitch McConnell: “This president’s attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.” Lamar Smith: “What is unprecedented is for the president of the United States trying to intimidate the Supreme Court.” Mike Johanns: “”What President Obama is doing here isn’t right. It is threatening, it is intimidating.” (Did you notice how everyone used the word “intimidate”? That’s because they got their language from a memo.)

The only time, besides Lincoln’s suspension of habeas corpus, that any president has seriously threatened the independence of the Supreme Court was when Franklin Roosevelt tried to amend the law to give the president the power to appoint more justices. And Roosevelt, frankly, was right on the merits of his proposal. The court is completely unaccountable and ridiculously powerful, it always has been, and pointing that out does not a constitutional crisis provoke.

The U.S. Constitution, like many state constitutions, really is two constitutions in one. There is the black-letter constitution, which consists of rules about which there is little or no dispute. Most of these have to do with qualifications for representatives, like Article I, Section 3, Clause 1, as amended: “The Senate of the United States shall be composed of two Senators from each State, for six Years; and each Senator shall have one Vote.” Not a whole lot of room for interpretation there.

The other constitution, embedded in the same document, is the Blank Constitution. It is not so much a limit on power as an assignment of the power to fill in blanks left in the text, like the Eighth Amendment’s prohibition of “cruel and unusual punishment.” The need to fill in the blank is admitted even by champions of the “original intent theory,” who must dig up historical evidence of what the drafters and ratifiers might have thought was cruel and unusual punishment at the time of the Constitution’s adoption. The answer is not contained in the text.

Even the basic definitions of powers assigned to different branches of government are blanks that must be filled in. The basic issue in the case of the Affordable Care Act is whether Congress had the power to compel individuals to purchase private health insurance, under the Commerce Clause and the Necessary and Proper Clause of the Constitution. Article I, Section 8, Clause 3 of the Constitution gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Article I, Section 8, Clause 18 gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Is the power to prescribe an individual health insurance purchase mandate included in these powers granted by the Constitution to Congress? The Constitution does not specifically say. If the Constitution were easy to amend, like some state constitutions, then it could be more specific — at the cost of having hundreds of amendments, like an imaginary Amendment Number 873: “Congress shall have power to impose an individual mandate to purchase health insurance.” But the federal constitution, for better or worse, was designed to be difficult to amend.

There is therefore no escaping acts of interpretation that are really acts of legislation: filling in the blanks in the text of the Constitution. The only real question, therefore, is how much latitude the federal judiciary should give Congress when Congress fills in the blanks by passing laws.

The Whig Party between the 1830s and the 1860s thought that the federal judiciary should defer to Congress. The Whigs favored a strong, competent federal government and opposed restrictions on federal power in the name of the states. Opposed to the administration of Andrew Jackson, the Whig Party also wanted the powers of the presidency strictly limited. In the Whig view, the federal judiciary should defend congressional power against encroachments by the states and the executive branch, while deferring to the decisions of Congress on matters of federal legislation.

The Whig theory of the Constitution strikes me as a pretty good one. But it rules out judicial activism, which has been embraced at different times by different factions in American politics. Between the Civil War and the New Deal, a pro-business federal judiciary persecuted unions and struck down federal, state and local restraints on corporations. In the civil rights era, liberal federal judges went beyond striking down racist laws to discovering a “right to privacy” in the Constitution that has been used to eliminate or restrict laws against abortion and homosexuality. Whatever you think about the outcomes of these cases, it is clear that the courts in all of them were just making things up.

In the case of the “right to privacy” they weren’t even filling in a blank in the Constitution, because the term does not exist in the text. In Griswold v. Connecticut, the 1965 case on which all subsequent federal law involving sex and reproductive rights including Roe v. Wade has been built, Justice William O. Douglas wrote that while the Constitution said nothing about contraceptives the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The right to privacy is a penumbra from an emanation — in other words, it is whatever a majority of the Supreme Court says it is at any given moment.

Liberals applaud the federal judiciary when it pretends to find constitutional restrictions on the ability of states to ban abortion or gay sex, and conservatives and libertarians applaud the federal judiciary when it pretends to find constitutional restrictions on the ability of Congress to regulate the national economy. The left and the right endorse judicial activism when it works in their favor and denounce it when it produces what they think are the wrong results.

For my part, I think the Whigs with their theory of judicial deference to Congress got it right. The states have usually been a greater threat to personal liberty and economic growth than the federal government. Yes, the federal government interned Japanese-Americans during World War II and has abused civil liberties in other ways, and before the Civil War some Northern states were more protective of freedom than the slaveholder-dominated federal government. But throughout American history national majorities, acting through the federal government, have more often checked the illiberalism of local majorities.

Economic policy, too, is best carried out at the federal level in a nation with a continental market. The Balkanization of the U.S. economy into 50 separate state economies by state regulations — even good regulations — is something that should be avoided. And as corrupt and partisan as it is, Congress is better equipped to make public policy than judges.

But wouldn’t judicial deference toward Congress and a broad interpretation of congressional power run the risk of majoritarian tyranny over minorities at the national level? The historical record suggests otherwise. The Supreme Court has almost never been ahead of the political branches when it comes to minority rights or individual freedom. The Court intervened in Brown v. Board only when the civil rights revolution was well underway in the streets and in legislatures, and it intervened in Roe v. Wade and recent gay rights cases only when waves of reform were making progress in federal, state and local legislatures. The federal judiciary has often run out with its surfboard to ride a wave of liberation, but it has never caused the wave. Indeed, in the last half-century the same reforms — anti-racism, the liberalization of abortion laws and the rise of gay rights — have taken place at roughly the same time in all advanced industrial democracies, including Britain, which has no written constitution at all.

When they try to fill in the blanks in the Constitution themselves, instead of letting Congress do the job, federal judges cease to be judges and start acting as legislators — incompetent legislators, like the Supreme Court justices who wrestled with issues like adverse selection in insurance policies in last week’s hearings. A number of state constitutions provide for the direct election of state Supreme Court justices by the people. Perhaps the federal Constitution should be amended along similar lines. Why not? If our laws are to be made by a tricameral federal legislature with three branches of the legislature — the House, the Senate and the Supreme Court — we the people might as well be empowered to elect the lawmakers in all three.

But I can’t.

I can’t because it isn’t theoretical. I am sick. I’m so sick I can’t drink. I can’t drink and I can’t eat half the things a normal person eats and when I hear the word “Obamacare” hissed in snide derision I want to put a golf club through the windshield of the nearest Mercedes-Benz.

I’m 33 years old. I was diagnosed with an autoimmune disease called ulcerative colitis when I was 26.

Ulcerative colitis isn’t a disease people like to discuss. Most of what we experience is so embarrassing that many of us don’t tell people what we’re going through. We might tell you we’re “sick,” or “under the weather,” but we won’t tell you how bad it is. We won’t tell you we’ve had constant diarrhea for days, weeks, months on end, that we’ve been throwing up stomach acid, that we can’t eat anything but bagels, and that our joints ache so badly it’s hard to sleep. We won’t tell you how we’re wearing adult diapers under our clothes. We won’t tell you that getting in the car and driving three blocks away is the only activity we can do in an entire day.

But you know what we will tell you? We have to have insurance. We need healthcare and support because ulcerative colitis is a lifetime sentence. You know what else it is? A preexisting condition. Since receiving my diagnosis I have lived in fear of losing my insurance because if I let my insurance lapse, and Obamacare fails, I won’t be able to get it again. Ulcerative colitis and her sister, Crohn’s disease, are up there in the echelons of Scary Diseases Insurance Doesn’t Like to Cover.

I get it, I do. Some of our drugs cost a ton. It’s likely we’ll be hospitalized here and there. And many of us can look forward to bowel resection surgery or colon cancer. We’re expensive and we stay expensive for our entire lives. That’s the sticking point with chronic illness like Crohn’s and colitis: We’re sick but we just keep on living. We just don’t die fast enough.

If the health mandate stays, then the preexisting condition clause goes away. Insurance companies have to take everyone — even me. Lose the mandate and I’m right back to worrying about my care.

In truth, I think Obamacare doesn’t go far enough. My family is still coughing up $900 a month to insure the three of us, since my husband and I are self-employed. That’s pretty unsustainable. But at least the current plan includes a provision that insurance companies have to take me. I may have to pay ridiculous sums to keep my insurance, but I’m not going to live in fear of being dropped.

The last thing a sick person should have to worry about is how to pay for their care. The last thing the parent of a sick child or the child of a sick parent should have to worry about is how to pay for care. People should not have to choose between food and medicine, losing their house or losing their loved one. Let’s hold onto Obamacare as a stopgap, but let’s also work toward the goal of universal coverage.

For those of you who think of the healthcare reform debate in theoretical terms, I warn you: Your day is coming. Sure, you and your family are healthy now, but you might not be tomorrow. Sickness can come out of nowhere and knock your world upside down.

You’d better hope you have decent coverage. You’d better hope you’ve won the genetic lottery and you’ll never find yourself sitting in a flimsy hospital gown on a sheet of wax paper, staring down at your unshaven legs while a doctor tells you you have a golf ball-size tumor in your head or ulcers lining your intestines. You’d better hope Obamacare covers your theoretical ass.