In case you’ve been shackled to a drainpipe for the past couple of weeks, there’s been an escalating tension in the air over the fate of Obamacare, now that the Supreme Court has heard the case.
President Obama, warning the other day that he would view a negative ruling by the Court as “judicial activism”, unburdened himself of a real whopper:
“Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Mr. Obama said in the Rose Garden appearance.
This is absurd, of course; ruling on the Constitutionality of acts of Congress is what the Court does, and has been doing since Marbury v. Madison. One can only assume that Mr. Obama,. with his degree from Harvard Law, does know that — so one can only assume that he simply doesn’t care, and is trying to paint the impending smackdown he is likely to get from SCOTUS as motivated by right-wing politics, rather than Constitutional jurispridence. All of a sudden he’s worried that he’s actually going to lose, and is laying the groundwork to turn the visceral anger of his base against the Court’s conservative Justices.
It’s working already. I have a student, a lawyer in his fifties, who in class last night complained to me that anyone could see that it was all just political: because after all, the ones who were seen as most likely to rule against the individual mandate — Roberts, Alito, Scalia, and Thomas — are all Republicans.
This is poorly reasoned — confusing correlation with causation — but we’ll be hearing a lot more of it, I think.
Anyway, as I said, tensions are high, and getting higher. Here we are in an election year, with the country breaking apart over irreconcilable, axiomatic disagreements about what America is and what governments are for, and the President’s signature accomplishment — bitterly fought and narrowly won on a blood-soaked political battlefield — is in real danger of being nullified. So when Mr. Obama fired off his warning shot across the Judiciary’s bow on Monday, it provoked a warlike response from a three-judge panel on the Fifth Circuit Court of Appeals, ordering the DOJ to report back by Thursday on whether the President actually believes that the Supreme Court has the power to strike down unconstitutional laws.
For the appeals court to make such a flamboyantly provocative gesture shows how high the temperature’s getting here. There’s often bad blood between the branches, but the smoldering feud between this administration and the conservative Justices is about as openly hostile as I’ve ever seen. (Remember the SOTU after the Citizens United ruling?)
Such high drama! and mighty entertaining — but the stakes are even higher.
8 Comments
I think that your student has a point. It is legitimate to question whether the Court issues 5-4 decisions which invariably favor Republican interests as a matter of both causation and correlation.
In Gonzales v. Raich, the Court ruled that the federal government may prohibit someone from using homegrown marijuana for medical purposes because of the Commerce Clause, citing Wickard v. Filburn as the justification. This is despite the fact that it was in a state which legalized medical marijuana, was grown and used within a single state, and there is no national market for marijuana.
Let’s bypass the fact that this ruling is directly contrary to the Court’s insistence on Federalism and states’ rights. It is impossible to square this decision with one which throws out Obamacare.
Obama was wrong to question the Court’s right to declare a law unconstitutional, and he was factually incorrect in asserting that it passed by a “strong majority” (at least in the House). What he should have said is that an adverse ruling would be further evidence of a Court which disregards judicial precedent in order to effect results-based jurisprudence. If the Court can cite Wickard as precedent for intrastate non-commercial activity of an illegal product, then to be consistent it must apply the same ruling for interstate commercial activity for a legal industry which is one sixth of the economy.
In another example of results-based jurisprudence, this week a Court which proclaims the value of small government ruled that police can conduct strip searches for even the most minor offenses, regardless of whether or not doing so has any relevance to the offense or the offender. You have to wonder if the Justices — five of them, anyway — live in the real world.
Given the series of 5-4 decisions which consistently benefit Republicans, if the Court throws out seventy years of Commerce Clause rulings to jettison Obamacare, one can reasonably ask if the Court would have stopped the 2000 recount if Gore was ahead, or if it would have issued the Citizens United ruling if left-leaning organizations have more money to spend than right-leaning ones. The Court is required to use its power impartially and apolitically. If it issues yet another 5-4 ruling in the current case, it provides the appearance if not the reality of abandoning that mandate to effect partisan agenda.
Well, I have no doubt that that is how it will “appear” to the left. They’ve made that clear enough already.
Again, what we see is a fundamental division, at the level of philosophical axioms, about what America is trying to be, and what the proper role of the Federal government is. The makeup of the Court reflects this deep fissure in American society, as do the two political parties. But it puts the cart before the horse to imagine, as many seem to be doing, that the conservative Justices take positions generally approved by Republicans because those Justices are Republicans; it is, rather, that Republicans and conservative Justices all gravitate to these positions because they share the underlying axioms. To say such a ruling is merely “political” misses the point altogether.
If one of those “underlying axioms” is small government, then how do you explain this week’s ruling?
More to the point: if the Court rules in favor of expansive federal powers under the Commerce Clause for something they personally disapprove of – or maybe they’re tired of being called the High Court? – then how do you explain a potential ruling which severely limits federal power in a situation which is obviously much more germane to interstate commerce?
There are lots of Court rulings which have abandoned precedent to effect results which the Justices personally desired. I heartily approve of the result of Roe v. Wade, but it is a horrendous decision with no real basis in the Constitution. Using personal beliefs as a guide is a judicial no-no, and it is done by both sides. My point here is that the Court gives the appearance of willingly abandons its professed axiomatic principles when the result suits its partisan or personal beliefs.
Appearances are in the eyes of the beholders, and they vary from one beholder to another. Be that as it may, the Court is under no obligation to present any specific appearance that would be acceptable to anyone in particular.
Their ruling stands whether they give you a thumbs up or flip you the bird. Here’s hoping it’s the latter when they rule on Obamacare.
Here’s a interesting post from Volokh Conspiracy, somewhat related to this:
http://volokh.com/2012/04/04/judicial-activism-for-me-but-not-for-thee/
I haven’t yet read the opinions given in the strip-search case, so for now I can’t offer an informed comment — but as far as I know it has nothing to do with expansions of Federal power.
You don’t think that allowing the government to conduct a strip search for jaywalking is an expansion of government power? How would you define unreasonable search and seizure?
As I understand it the case had to do with whether corrections officals could search a new inmate upon his arrival at the jail. That doesn’t seem particularly “unreasonable” to me; I can see why jailers might want to make sure that a new prisoner isn’t concealing weapons, drugs, etc.
As I said, I haven’t read the opinions yet, so at this point I don’t have much else to say about it. It is not obvious to me, though, that this county-level case grants sweeping new powers to the Federal government.