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 U.S. Supreme Court strike down the Obama administration's interpretation of a key provision of the Affordable Care Act (ACA) in King vs. Burwell (Case Number 14-114), 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." And the critics were hardly limited to the right. My fellow Bloomberg View columnist (and former student) Noah Feldman warned that Baude's idea would represent "a flagrant violation of the rule of law."
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. Although one might be tempted to say that he is engaged in special pleading on behalf of a deeply flawed and terribly rushed piece of legislation, I'd like to suggest that there's more to his critique than might be first apparent.
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. Jeremy Waldron, a professor at New York University School of Law, contends that public debate is often richer in countries that leave the most divisive issues to popular decision. Academic work, he argues, is also impoverished by its court-centeredness, to the point where legal scholars "are intoxicated with courts and blinded to almost everything else by the delights of constitutional adjudication."
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.
