The big health-care decision from the Supreme Court isn’t expected until Thursday morning. But in the meantime, the court’s growing activism has unsettled Democrats in Washington and across the country. Their concern doesn’t stem only from decisions such as Citizens United (which the court opted not to revisit this week), but from the speed at which established case law—such as that governing the constitutionality of the individual mandate, which few legal scholars questioned as recently as three years ago—is being overturned or simply ignored.
One likely result of this, according to Jim Manley, a former top aide for Senate Majority Leader Harry Reid of Nevada, is to kill off whatever slim chance there was that the Senate might agree to reform the filibuster. That’s the blocking mechanism Republicans have used routinely over the past three years to force Democrats to come up with 60 votes, rather than the 50 votes required to pass legislation. Filibuster abuse is a big reason why Congress has become such a dysfunctional organization (more about that here). “It’s impossible to imagine filibuster reform happening in light of the last couple weeks,” Manley told me.
As recently as last month, Reid apologized for not having helped a group of young Democratic senators who’d sought to reform the filibuster at the beginning of the last Congress. This suggested Reid was now open to reform—a big deal, because the perennial problem for those who support reform is getting the majority party (which controls the rules) to act. Typically that’s difficult, because senators in the majority who are frustrated about getting blocked also recognize that they’ll probably one day find themselves in the minority and want to employ the filibuster themselves. But things had gotten so bad that it looked like that might finally change, even with Republicans not interested in the issue, at least for now.
According to Manley, however, the court’s decisions over the past few weeks, and the likelihood that it will strike down the health-care law, have convinced a number of Democratic senators that they cannot risk eliminating the filibuster since they may well find themselves in the minority after November. (My guess is they will be.) The basis of their concern is abortion—specifically, that the court cannot be counted on to uphold Roe v. Wade, and that a Republican Party increasingly intent on outlawing abortion will quickly do so if Republicans and Mitt Romney control Washington after the election.
On Tuesday, in fact, Reid pulled an important flood-insurance bill from the Senate floor because Republican Senator Rand Paul of Kentucky had insisted on attaching a “fetal personhood” amendment stating that life begins at conception. That kind of zeal, and the court’s activism, will probably be enough to convince Democrats they cannot afford to give up what would be their last bulwark against Republicans.