The Wall Street Journal
The legal left echoes Newt Gingrich on judicial power.
After last weeks Supreme Court argument on ObamaCare the political left seems to be suffering a nervous breakdown. Only a week ago the liberal consensus was that the federal mandate to buy insurance couldnt possibly be overturned. Now as
panic sets in the left has taken to mau-mauing the Justices by saying that if they overturn the mandate theyll be acting like political partisans. The High Courts very legitimacy will be in question as one editorial put ita view repeated across the liberal commentariat.
This criticism is itself political lobbying as is clear from the fact that it mostly spares Anthony Kennedy the likeliest swing vote. Liberals still hope Justice Kennedy will uphold all of the law even as they audition the mauling hell get if he joins Antonin Scalia Samuel Alito and Clarence Thomas in the ninth level of judicial hell. Chief Justice John Roberts is also being lectured that the case will define his career though in six years he has already established a record as a careful consensus builder on the Court.
Overturn any part of the law the Justices are being told and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And by the way youll show you hate sick peopleas if the Courts job is to determine health-care policy.
This is the lefts echo of Newt Gingrichs threat earlier in the primary season to haul judges before Congress when it dislikes their rulings. Remember the political outrage over that one?
No doubt the Justices will ignore this transparent attempt at political intimidation but someone should defend them against the claim that overturning the law would be judicial activism. Its more accurate to say that failing to overturn the mandate would be dodging their duty to uphold core constitutional principles.
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Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.
The classic example acknowledged by good liberals like Alexander Bickel and Archibald Cox at the time is
Roe v. Wade in 1973. The High Court discovered a right to abortion rooted in a right to privacy that it had invented in
Griswold in 1965 from the Constitutions penumbras and emanations.
Roe overturned 50 state laws and pre-empted a healthy debate that would have reached a different abortion consensus in different states. Our cultural politics has been polarized ever since.
The ObamaCare case is very different as the oral arguments made clear. The Court is debating the reach of the Commerce Clause and of its own precedents in considering the limited and enumerated federal powers that are explicit in Article I Section 8.
The Court has often overturned laws that exceeded those powers including laws that it said exceeded the authority of the Commerce Clause (
Lopez in 1995 for example and
Morrison in 2000). Hundreds of other precedents have extolled the value of the constitutions dual sovereignty systemthe division of state and federal power. As recently as the
U.S. v. Bond case last year Justice Kennedy wrote that federalism protects the liberty of the individual from arbitrary power.
Far from seeking an activist ruling the ObamaCare plaintiffs arent asking the Court to overturn even a single Commerce Clause precedent.
In that sense the Court can overturn the mandate and still be far more modest than it was in the gay rights case of
Lawrence v. Texas (2003) that overturned
Bowers v. Hardwick (1986). And more modest than it was in barring the juvenile death penalty in
Roper v. Simmons (2005) which overturned
Stanford v. Kentucky (1989). The legal left celebrated both of those reversals of relatively recent Supreme Court precedents.
At stake in ObamaCare is whether the High Court will ignore 225 years of constitutional understanding to ratify the federal governments claim that it can force individual Americans to buy an insurance productto engage in commerceso it can then regulate all of the health-care market. The activism charge is a political canard intended to obscure these grave issues and intimidate the Court and the Justices and the public would do well not to take it seriously.
