The Obama Generation and the Supreme Court
posted by Gerard Magliocca
I thought I’d put up an abstract of this new draft that I’m putting together. My blogging will be light to nonexistent for the next month, as I’ll be out of the country for a week, then working on this paper and some other projects. Cheers!
THE OBAMA GENERATION AND THE SUPREME COURT
Gerard N. Magliocca*
The health care debate was the defining event of President Obama’s first year in office, and the constitutional challenge to the individual health insurance mandate enacted in 2010 will probably be the signature Supreme Court case during his Administration. Some argue that the Commerce Clause does not grant Congress the power to coerce Americans to buy insurance if they do not want it. Others say that the requirement that those who do not buy insurance must pay a tax violates the Direct Tax Clauses. Supporters of health care reform, naturally, are contesting these claims in what promises to be a long fight before any litigation reaches the Justices.
Instead of addressing these doctrinal questions, this Article looks at whether the Court will invalidate the individual mandate by examining how other transformative laws were treated under similar political circumstances. In two recent books, I have laid out a theory of “generational cycles” that sheds new light on constitutional law. Drawing on the scholarship of Bruce Ackerman, Stephen Skowronek, and Keith Whittington, the theory holds that there is a robust pattern in our politics, which repeats itself approximately every thirty years, in which a new movement rises up against the constitutional abuses of the previous generation of leadership and realigns the electorate. Starting with the Founders’ rebellion against the British in the 1770s, this tale of reform, ossification, and rebirth recurred with Jefferson’s Revolution of 1800, Jacksonian Democracy’s sweep in 1828, Lincoln’s unlikely triumph in 1860, the epic duel between McKinley and Bryan in 1896, Roosevelt’s New Deal in 1932, the Civil Rights Movement of the 1960s, and the Reagan Revolution of the 1980s. Conceptualizing constitutionalism in temporal terms is helpful because each of these generations unfolded in an analogous way, and hence comparisons can be drawn between otherwise unrelated constitutional issues that share a common point in political time (i.e., within a given period).
The election of Barack Obama nearly three decades after Ronald Reagan’s first landslide marks the next phase of this cycle. There are robust parallels between the crisis of confidence in federal action during the 1970s that brought President Reagan to power and the disasters of federal inaction during the 2000’s that paved the way for President Obama. Moreover, the backdrop for the last election–especially the Panic of 2008–mirrors the sort of shock that frequently precedes an electoral realignment, just as the Great Depression paved the way for the New Deal. Finally, the way in which the health care debate developed, in the ambitious scope of the proposal, the intense counter-mobilization against the bill, and the unorthodox procedure used to enact the law, resonates with how most new constitutional generations get started.
Once the Obama Administration is viewed in this broader context, the fate of health care reform can be judged by exploring how the Court deals with the first major statutes enacted by a new generation. To that end, I discuss three sets of examples. The first involves the repeal of the Judiciary Act of 1801, which was upheld in Stuart v. Laird and was at issue in Marbury v. Madison. The second concerns the Reconstruction Acts, which put the South under military rule following the Civil War and were behind the great jurisdiction-stripping case of Ex Parte McCardle. And the third addresses two laws passed during Franklin D. Roosevelt’s first “Hundred Days”–the Joint Resolution that took the United States off the gold standard and was upheld in a series of decisions, and the National Industrial Recovery Act (NIRA), which was struck down in A.L.A. Schechter Poultry Corporation v. United States. In all of these cases, a majority of the Court was hostile to the new legislative agenda, but it did not always act on those views.
Though the sample of sweeping laws enacted at the start of a new constitutional generation is small, some tentative conclusions can be drawn about what drives judicial behavior at these turning points. First, the statute’s popularity at the time it is reviewed is a significant consideration–the more popular it is, the more likely it is to be upheld. Second, the preference intensity of Congress or of the Administration in support of a statute, as revealed through the briefs, leaks to the media, or official actions, is critical, especially to the extent that it signals that the Court will face harsh institutional consequences if it holds a statute unconstitutional. Third, the preference intensity of the Court clearly counts for something, as measured by its willingness to reach out and decide constitutional issues. Finally, doctrine is just not that relevant in these situations. Thus, right now there is no way to predict whether the individual mandate will be upheld, because the information vital to resolving that question is not yet available.
Part I explains that the party system reconstitutes itself at regular intervals because of the influence of “generational cohorts,” which are bloc voting patterns based on age and on attitudes formed in response to shocks, and then analyzes the implications of this cycle for constitutional law. Part II argues that President Obama’s election and the enactment of health care reform represent the latest iteration of this process. Part III presents three case studies about how a Court that represented a fading generation reacted to major legislation from the ascending one in its initial stage. Part IV extracts some principles from these precedents and applies them to the individual mandate.
 See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010). The individual mandate does not come into effect until 2014. See id. at § –.
 See Randy Barnett, Is Health-Care Reform Constitutional?, Wash. Post, Mar. 21, 2010, at – (“The individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented.”).
 See U.S. Const., art. I, § 2, cl. 3 (“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . .”); see id. at. art. I, § 9, cl. 4 (“No capitation, or other direct, Tax, shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”). The argument is that the health care fee is a head (capitation) tax and is not being apportioned among the states as a direct tax must be. [add more]
 [Find cites defending the Act]
 See Gerard N. Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and The Politics of Backlash (2011); Gerard N. Magliocca, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2007).
 See, e.g., Bruce Ackerman, The Living Constitution, 120 Harv. L. Rev. 1737, 1757 (2007) (“Constitutional history goes in cycles. Since 1776, each rising generation has looked up to the political heights to find that the government of the day was hell-bent on oppression. Time and again, the same response: organize an oppositional movement in the name of We the People, and redefine America’s constitutional future.”); see generally Stephen Skowronek, The Politics Presidents Make: Leadership From John Adams to Bill Clinton (1997) (describing a cyclical model of the presidency, though not on generational lines); Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, The Supreme Court, and Constitutional Leadership in U.S. History (2007) (using Skowronek’s model to analyze judicial review).
My discussion assumes that realignments are real, even though some scholars, especially David Mayhew, are more skeptical. See generally David Mayhew, Electoral Realignments: A Critique of An American Genre (2002) (arguing that only 1932 and possibly 1860 were true realignments).
 Needless to say, this Article will not discuss all of these movements in detail. For an excellent source on party realignments, see James L. Sundquist, Dynamics of the Party System (1983); see also Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (2005) (discussing the Jeffersonian period).
 There are similarities between my framework and Arthur M. Schlesinger Jr’s view that the party system oscillates between liberalism and conservatism, see generally Arthur M. Schlesinger Jr., The Cycles of American History (1986) (explaining this idea), though his characterization was somewhat simplistic. For instance, Jacksonian Democracy could be described as conservative (on race) or liberal (on economic issues), so attaching a single label to that period (or some others) is not appropriate.
 See, e.g., Jimmy Carter, Energy and National Goals, Address to the Nation, 1979 2 Pub. Papers 1235, 1237 (Jul. 15, 1979) (“The erosion of our confidence in the future is threatening the social and political fabric of America.”) [hereinafter Malaise Speech].
 For an example tied to the 1896 realignment, see Herbert Croly, Marcus Alonzo Hanna: His Life and Work 210 (1912) (explaining that the Panic of 1893 “stirred the American people more deeply and had graver political consequences than had any previous economic famine”).
 See, e.g., Health Care and Education Reconciliation Act of 2010, Pub. L. 111-152, 124 Stat. 1029 (using the reconciliation process to amend the original health care bill and avoid a Senate filibuster after a special election reduced the number of Senate Democrats to fifty-nine). The leading source of that counter-mobilization is the Tea Party, which has some counterpart in nearly every other constitutional generation. See infra text accompanying notes —.
 5 U.S. (1 Cranch) 299 (1803).
 5 U.S. (1 Cranch) 137 (1803).
 74 U.S. (7 Wall.) 506 (1869); see Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) (raising doubts about Congress’s power to impose military rule in peacetime). Reconstruction, of course, happened several years after Lincoln’s election, but during the Civil War the Court stayed on the sidelines. The late 1860s was the period where the Justices engaged the new Republican generation.
 See Perry v. United States, 294 U.S. 330 (1935); see Nortz v. United States, 294 U.S. 317 (1935); Norman v. Baltimore & Ohio R.R. Co. 294 U.S. 240 (1935); David Glick, Conditional Strategic Retreat: The Court’s Concession in the 1935 Gold Clause Cases, 71 J. Pol. 800 (2009); Henry M. Hart, Jr., The Gold Clause in the United States Bonds, 48 Harv. L. Rev. 1057 (1935).
 295 U.S. 495 (1935).
 On the tension between the Court and the elected branches at inflection points between constitutional generations, see Robert H. Jackson, The Struggle for Judicial Supremacy 315 (1941) (“The judiciary is . . . the check of a preceding generation on the present one; a check of conservative legal philosophy upon a dynamic people, and nearly always the check of a rejected regime on the one in being.”); Robert H. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279, 285 (1957) (making a similar point).
 The Article will also refer to decisions from the Jacksonian and Populist eras, see Pollock v. Farmers’ Loan & Trust Co. 158 U.S. 601 (1895) (invalidating a federal income tax as inconsistent with the Direct Tax Clauses); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (calling the validity of the Indian Removal Act into question), but they are discussed at length in my books and I see no need to repeat that analysis here. The Reagan Revolution does not provide any examples because the most notable statute enacted early in that generation—the 1981 Tax Cuts—did not raise a justiciable issue. The 1960s generation does present some relevant cases, but I do not feel nimble enough with that history to say anything intelligent about them.
 A far more sophisticated presentation of this point can be found in Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009).
 See Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court 94 (2010) (noting that the Attorney General personally argued the Gold Clause Cases in the Court and told the Justices that an adverse decision would “stagger the imagination. It would not be a case of ‘back to the Constitution.’ It would be a case of ‘back to chaos.’”); see also 2 Stat. 156 (1802) (cancelling the Court’s Term to postpone a challenge to the repeal of the 1801 Judiciary Act).