"The Supreme Court Follows the Election Returns"

As Mr. Dooley, Peter Finley Dunne’s astute Irish-American barkeep, observed over a century ago, politics rather than legal precedent, makes it likely the United States Supreme Court will negate the 2010 Affordable Care Act (“Obamacare”) this year. Every 80 years, the Supreme Court has decisively entered a sharply divided political process to provide its own answer to the fundamental question of American politics: what is the scope and purpose of government?  Each time, it has attempted to reinforce the generational and party alignments of a previous era in the face of challenges from the beliefs and partisan preferences of an emerging civic-oriented generation like today’s Millennials (born 1982-2003). This eighty year cycle is due to be repeated in 2012.

The first time the Court attempted to authoritatively resolve an ongoing, deeply divisive political conflict and reaffirm the political arrangements of a previous era was in the dreadful 1857 Dred Scott decision.  Before the Court issued its infamous dictum in this case, Congress had struck a careful balance between pro- and anti-slavery forces with the Missouri Compromise of 1820.  Based on that agreement, states were admitted to the Union in pairs—one slave and one free. Eventually, driven by the uncompromising ideological beliefs of the Transcendental Generation (born 1792-1821), which were as sharply divided as today’s Baby Boomers, continued accommodation became impossible.  In Dred Scott, the Court attempted to impose its own solution by declaring the Missouri Compromise unconstitutional. Its ruling, in effect, made slavery legal throughout the entire country and denied citizenship to blacks, even those who were free. 

Of the nine justices who ruled on the case, four were members of the Transcendental Generation and a fifth was born in 1790, on the cusp of generational change. Seven were from the era’s dominant Democratic Party. Five of the seven who decided against Dred Scott were from slave states. It was not until President Abraham Lincoln appointed a majority of justices consisting primarily of Republicans from Union states, that the Court’s regional, generational, and partisan composition changed.  During the administrations of Lincoln and his successors, the Court ratified the new governing arrangements that had been achieved in the Civil War.

The same pattern emerged again eight decades later.  The argument over the nation’s political fundamentals now dealt with the extent and type of governmental intervention in an industrial economy.  In 1935 and 1936, the Supreme Court rallied to protect the old order of laissez faire economics in response to a range of governmentally activist New Deal laws enacted by Franklin Roosevelt and a Democratic Congress with the overwhelming support of America’s newest civic generation, the GI Generation.

 Justices Butler, McReynolds, Sutherland, and Van Devanter—nicknamed the “Four Horsemen of Reaction”—often joined with one of the Court’s centrist justices to rule against the core components of the New Deal. Seven of the justices, including three of the Four Horsemen, were of the ideologically-driven Missionary Generation (born 1860-1882). A like number were from the Republican Party that dominated electoral politics from the Civil War to the Great Depression.

It took the political message delivered by FDR’s record-breaking reelection in 1936 to persuade the centrist justices to consistently side with the president and the Court’s liberal “Three Musketeers” by accepting the constitutionality of New Deal laws. Retirements and mortality allowed Roosevelt to appoint eight of nine justices by the time he died in 1945, thereby giving the Court a very different generational and partisan cast.

Today, all of the factors that shaped the Supreme Court’s actions in 1857 and in the 1930s are once more in place. Political figures ranging from Barack Obama  to Newt Gingrich remind us that America is again poised to answer the eternal question of the role and size of government. A new civic generation, the Millennials, is emerging with the potential to dominate and reshape politics in the next four decades. Like the GI Generation, Millennials strongly support a reformist Democratic president, favoring Barack Obama against his potential 2012 opponents by about the same 2:1 margin as they did in 2008. As in the past, the generational and partisan composition of the Supreme Court reflects an earlier era. Five of the justices, including a majority of its conservative bloc (Roberts, Thomas, and Alioto) are Boomers (born 1946-1964). The rest are members of the even older Silent Generation (born 1925-1945). A majority are Republicans.

When the Court rules on the constitutionality of the Affordable Care Act, it will be judging legislation about which generations sharply disagree. Two-thirds of Millennials want the Affordable Care Act either to be expanded (44%) or left as is (23%). By contrast, clear pluralities of Boomers (44%) and Silents (46%) want “Obamacare” to be repealed.

If history is any guide, the Supreme Court will rule against a civic generation and a president that generation so strongly supports. But, history also tells us that may not be the end of the story. The Millennial Generation is the largest ever. Millennials now comprise one-fourth of American adults; by 2020 it will be more than one-third. To the extent that this large cohort is able to bring a new “civic ethos” to American democracy, the Court is likely to adhere to another historical precedent by moving beyond the doctrines of an earlier era and accepting those of a new generation. The results of the 2012 election will go a long way toward determining if and when that happens.