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The Supreme Court’s Conservative Activist Judges

Giving post-mortems on the question of health care at the Supreme Court is premature, and as law professor David Cole writes, you can find as much evidence for upholding Obamacare in the text of the arguments as you can evidence for tossing it out.

However, as a political spectacle, with the eyes of the nation upon them, it was clear to see that we have a large contingent, perhaps a majority, of committed judicial activists on the Court. Only they’re on the conservative side of the ledger. I think EJ Dionne is largely correct:

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches […]

Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed, single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal.

Good for Dionne for saying that out loud. This tactic of triangulation or whatever you want to call it, of stealing your opponent’s ideas, never, ever works. Here we were in a court of law, and instead of the main topics being settled precedent like Wickard v. Filburn or recent cases like Gonzalez v. Raich, you had the conservative justices picking through the health care law and sounding like talk-radio hosts, with hypotheticals about broccoli and invocations of the Cornhusker Kickback. And while Jon Walker makes a good point about the implications of the Court striking down the individual mandate, and while some of the Justices and even the legal team on the conservative side agreed that a single-payer plan would be Constitutional, in the rare event that a future Democratic Administration passed such legislation, I have no doubt that conservatives would turn on a dime and find another reason to call THAT unconstitutional. And I have no doubt that this set of judicial activists on the Court, at least, would agree with them.

There’s more from Paul Krugman on the bad-faith arguments from the conservative justices, as well as Jon Chait. This is not really about protecting the individual mandate – one which doesn’t come with enough of a strong set of social protections to really defend, nor is it strong enough (the penalties are weak, there’s a hardship exemption, and there’s pretty much no enforcement power) for a strong objection. It’s about a majority or near-majority on the Supreme Court quite literally making it up as they go along, in obeisance to raw ideology.

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David Dayen

David Dayen