Challenging the almighty Supremes

Maybe everybody’s being too hard on William Baude. In an op-ed article in Tuesday’s New York Times, Baude proposed that should the Supreme Court strike down the Obama administration’s interpretation of a key provision of the Affordable Care Act, the president might follow the example of Abraham Lincoln in refusing to apply the ruling to anyone other than the plaintiffs in the case.

You’d have thought the sky had fallen.

Criticism poured in. Ethan Blevins of the Pacific Legal Foundation protested that the country “deserves an executive branch that honors this basic notion of separated powers.” James Taranto in the Wall Street Journal thundered that “disrespect for the judiciary is one thing; open defiance is a considerably more radical step.”

Well, let’s slow down a minute. Baude, who teaches constitutional law at the University of Chicago, has presumably thought through all of these implications.

It’s not the rule of law that Baude is challenging. It’s the rule of courts – and that’s a very different thing. In the U.S., we are raised to an ideology of judicial supremacy. We leave tough questions to the judges, and the judges fix them. Among legal scholars, however, the institution of judicial review has lately been undergoing something of a crisis, of which Baude’s provocative suggestion is just one more sign.

It’s about time.

The Supreme Court long ago degenerated from the glorious unanimity of the desegregation battle to the era of sharply divided decisions, where the justices snipe at one another in footnotes. It should hardly be surprising, then, that over the past 10 or 15 years, leading constitutional scholars have begun to raise questions.

Larry Kramer of Stanford University, in his 2004 book “The People Themselves,” argued that the Framers designed the courts as a vindicator rather than a violator of popular sovereignty, and that judges – even at the Supreme Court level – should act with the understanding that the people of the United States are “a higher authority … with power to overturn their decisions.” Harvard’s Mark Tushnet, in “Weak Courts, Strong Rights,” points out that countries without American-style judicial review often provide stronger protection of rights, including more generous social welfare benefits.

Even Erwin Chemerinsky, dean of the law school at the University of California at Irvine, who a decade ago was criticizing the critics of judicial review, has lately argued that the justices rarely take positions that truly protect the powerless – so rarely that he at least implicitly questions whether the institution is owed the deference we accord it.

There is more going on here than a few academics playing the role of intellectual agents provocateurs. The Baude essay that has caused so much tumult only lifts the cover from a larger battle. Something has come undone. The old consensus has unraveled. The days when only segregationist governors questioned the absolute authority of the Supreme Court are a distant memory.

The administration is unlikely to take Baude’s advice (even though some critics say it’s happened already), and I think the president’s counselors would be ill-advised even to consider it seriously. But that doesn’t mean Baude is outside the mainstream. With the institution of judicial review under assault in the law schools, it’s only a matter of time until doubts about the old-time consensus creep into public debate. And maybe that’s a conversation worth having.

Stephen L. Carter is a Bloomberg View columnist and a law professor at Yale.