The Supreme Court is a vulnerable institution in that it has great power and takes its legitimacy from a belief in the public that it acts in a nonpartisan manner. To have a decision that strikes at the heart of the Affordable Care Act, which people have struggled for decades to pass, is the president’s singular domestic policy accomplishment, I fear for the institution itself. Already there’s much less support for the court than there has been in the past. A decision by this court to strike down the individual mandate or the whole bill on a partisan vote I think will dramatically undermine the institution itself.

— Neera Tanden, president of the Center for American Progress, quoted in the March 30, 2012, number of the Guardian.

* * *

As the Supreme Court gets ready to make its ruling on Obamacare, the Left has been tuning up for the possibility that the health insurance mandate will be ruled unconstitutional on a vote of but five to four. The idea is that a ruling of the Supreme Court lacks for full legitimacy if the vote among the Nine is close. If the court does rule five-to-four, we are going to hear a lot about it. There will be ways to answer, including the fact that a five to four vote would be a larger margin than that by which Obamacare was enacted in the House, where the law was slipped through on a vote of 219 to 212.

This argument is a trap for the Left. If a five-to-four vote in the Supreme Court is illegitimate in respect of Obamacare, after all, what is the Left going to say in respect of what some of us hope will be the next big issue, legal tender? That Americans must accept government paper scrip tendered in payment of debts is arguably the most far-reaching ruling on the economy ever issued by the Supreme Court. It was handed down in 1871 in Knox v. Lee, crown jewel of the Legal Tender Cases. In Knox, Phoebe Lee sued William Knox for the value of her flock of sheep, which, during the Civil War, had been confiscated by the Confederate Army at Texas. Lee won, but Knox appealed, claiming the Texas jury – trying to cover the gap in value between paper greenbacks and coin money – had inflated the damages.

The five-to-four Supreme Court ruling in Knox v. Lee meant that creditors would be with the government scrip for all debts, in all cases. It was more frustrating than that for advocates of sound money, however. Only a year earlier, the Supreme Court had ruled in the opposite direction. It had said that requiring people to accept greenbacks as legal tender was unconstitutional. The earlier case involved a lady named Susan Hepburn, who in paying off a debt she owed to a fellow named Henry Griswold tried to palm off federal paper greenbacks. The Supreme Court opinion that said she couldn’t get away with the scheme was written by the chief justice himself, Salmon Chase.

This must have been surprising to the hapless Mrs. Hepburn, because Chase, only a few years previously, had created the greenbacks. That was when he was President Lincoln’s wartime treasury secretary. He created the greenbacks and urged Congress to pass the law that made them legal tender. Yet no sooner did he mount the high bench than he promptly turned around and ruled the whole scheme unconstitutional. “Not every act of Congress, then, is to be regarded as the supreme law of the land,” spake he from his new Olympus, “nor is it by every act of Congress that the judges are bound.”

The vote was four to three, as the court at the moment had but seven members. Chase’s ruling didn’t last long. On the very day the ruling was made the new president, U.S. Grant, nominated two new justices to the court, bringing it up to its full strength of nine. So when the case of Mrs. Lee’s sheep came before the court, the cause of sound money lost on the vote that The New York Sun would argue had the highest ratio in history between the consequences of the ruling and the margin of the vote. We confess that ratio is hard to quantify, but somebody’s got to put the matter in sharp relief, and that’s how we would do it.

* * *

Now we have no idea of what the Supreme Court is going to do next week, if next week turns out to be the week. It may well be that it will sustain Obamacare, and, being wary of narrow margins, do so by a wide margin. “I do think the rule of law is threatened by a steady term after term after term focus on five to four decisions,” Chief Justice Roberts was quoted by the New Republic as telling its Supreme Court leg, Jeffrey Rosen. But it may also be that the court will sustain Obamacare by only a narrow margin or even overturn it by a narrow margin. Our own inclination is not to make a big deal out of the margin one way or another. If it does turn out to be a narrow margin and there is a hue and cry, we’ll take it as a signal that there’s hope yet for what we regard as the most important constitutional crusade in the country — a ruling of the high court that ends fiat money legal tender by at least as large a margin as that by which the court endorsed it a century and a half ago.

________

This editorial has been corrected from an earlier edition to give a more accurate description of Knox v. Lee.