It'll still be there tomorrow.

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Obamacare Will Not Kill the Supreme Court

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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On Wednesday, the U.S. Supreme Court will hear arguments in King v. Burwell, which will decide whether the federal government can offer insurance subsidies on the health exchanges it operates. As the Official Blog Spouse points out, both parties engaged in considerable pre-positioning, with Democrats predicting a policy holocaust while Republicans claim they'll have a transitional plan all ready to go, so no big deal if you overturn it, guys. Unsurprisingly, liberals are also mounting an all-out push to convince the Supreme Court that the very legitimacy of the institution is at stake.

This is first-class flummery: What they really mean is that they will be very angry at the Supreme Court if the case goes against them. This is completely true. It is not completely true that the Supreme Court will somehow destroy itself, or its place in American society, if it offers a ruling that American liberals don't like. I realize that it may feel this way if you are an American liberal. But if the institution survived Roe v. Wade's "emanations and penumbras," and the sudden discovery after a couple of centuries that capital punishment violated the Constitution, it can certainly survive a narrow statutory case that overturns a still-unpopular program.

To listen to most commentators, the legitimacy of the Supreme Court is a delicate flower. It blooms fiercely whenever the court does something they like -- stand by for sonorous pronouncements from these same illegitimacy-mongers that "the highest court in the land has spoken" should the court rule in favor of gay marriage this term. But if it issues a single ruling that they don't like, then it is a despotic institution mired in bad ideology. These things obviously cannot both be true. If the Supreme Court loses its legitimacy, then its rulings about gay marriage and civil liberties will be exactly as illegitimate as its rulings about Obamacare and the Religious Freedom Restoration Act.

In fact, all these rulings are well within the scope of a perfectly legitimate court. I may disagree with some of them -- hell, I'm still mad about Wickard v. Filburn. But the Constitution and 200 years of legal precedent give the court the power to make these rulings. And frankly, the biggest threat to democracy is not the court; it is commentators declaring that they're going to take their ball and go home if the institution starts producing rulings they don't like. Democracy can survive badly reasoned court rulings. It cannot survive a polity, or a policy elite, that thinks support for our institutions is optional, to be withdrawn should the court have the audacity, the sheer unmitigated gall, to stymie that elite's agenda.

Are there situations in which one would be justified in withdrawing support for the Supreme Court, to declare that it has destroyed its own right to determine the shape of American law? Absolutely. But "The Supreme Court disagrees with me over the proper application of the two-part Chevron test to the Patient Protection and Affordable Care Act" does not even remotely fit the case for making these sorts of thinly veiled threats. Sane and sober adults should not talk this way. There are things even more important than Obamacare. Holding our country together is one of them.

((Corrects date in first paragraph.))

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Megan McArdle at

To contact the editor on this story:
Brooke Sample at