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Will the Real Judicial Activists Please Stand Up?



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Politico’s Glenn Thrush argued yesterday that the Obamacare case is Chief Justice Roberts’ Bush v. Gore moment, especially if the Court strikes down the law. The piece quotes AEI’s Norm Ornstein describing Chief Justice Roberts as a political activist, and quotes Jeffrey Toobin, emphasizing “how political a body the Supreme Court is.” This characterization does a disservice to the difficult grappling with complex legal issues that the Court’s more conservative wing engaged in over the last three days, and ignores the great efforts of the Court’s liberal wing to uphold the law. At least on Tuesday, Jeffrey Toobin understood this, reporting how Chief Justice Roberts “asked hard questions of both sides,” while “all four liberal justices tried as hard as they could to make the arguments in favor of the law.”

Justice Sotomayor in particular did what she could to convince her undecided colleagues. Although in her confirmation hearings, Justice Sotomayor eschewed an “empathy” standard for decision making, she appeared to wield it on Tuesday, asking (emphasis mine):

What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn’t have insurance — do you think there’s a large percentage of the American population who would stand for the death of that child

She took the same approach yesterday, explaining during the Medicaid-expansion arguments that “the uninsured are a problem for states only because they, too, politically, just like the Federal government, can’t let the poor die” (emphasis mine).

Not to be outdone, Solicitor General Verrilli referenced in his closing the “millions of people with chronic conditions like diabetes and heart disease,” and “a husband whose wife is diagnosed with breast cancer and who won’t face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone” (emphasis mine).

A number of the liberal justices also expressed concern about the policy issues implicated by the case. For example, during the severability arguments, Justice Breyer seemed to take the strange role of a Supreme Court Speaker of the House, asking if the attorneys could get together to agree upon which of the law’s provisions are peripheral, to make it easier for the Court to determine which provisions of the 2,700-page law should stand. Justice Scalia retorted that they could “have a conference committee report afterwards, maybe.”

The liberal justices tried to bolster the solicitor general’s case, especially on Tuesday, by telling him what he should be arguing (emphasis mine).

Justice Ginsburg:

Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance . . . you may not have the money. . . . I thought what was unique about this is . . .the cost that I am forcing on other people if I don’t buy the product sooner rather than later.

Justice Breyer didn’t like some of Solicitor General Verrilli’s answers, so he provided different ones:

I’m somewhat uncertain about your answers to — . . .can you, under the Commerce Clause . . . create commerce where previously none existed. Well, yes, I thought the answer to that was, since McCulloch versus Maryland . . . the answer has been, yes. I would have thought that your answer — . . .[Justice Breyer then provides a technical way to try to justify the answer] wouldn’t the answer be, yes, of course, they could. 

Justice Ginsburg thought the same thing:

I thought a major, major point of your argument was that the people who don’t participate in this market are making it much more expensive for the people who do. . . 

Certainly all of the justices asked tough questions that supported their viewpoint. But, if the more conservative justices were carrying water for the challengers to the law, one would have expected them to explicitly help out the challenger’s lawyers, while refusing to help the government. But, this was most certainly not the case. For example, both Chief Justice Roberts and Justice Kennedy made arguments for the government, articulating what they thought was key to the government’s argument, and calling out attorneys for not addressing the government’s main point.

If the more conservative justices were interested in a purely political decision, they did not show it. Their questions during the arguments demonstrated a strong grasp of the relevant constitutional issues; hardly the work of political activists. In fact, if any of the justices over the last two days met this description, it was the liberal justices, who had to make up for a less-than-stellar government performance, especially on Tuesday.

The Constitution protects our rights by limiting government, and it is sometimes up to the Court to enforce the Constitution’s limitations. The Obama administration was repeatedly asked to provide a limiting principle that would allow the Court to uphold the mandate without concluding that the Constitution allows unchecked national control of our lives. The DOJ’s lawyers failed to provide one, and they have been unable to provide one throughout this entire litigation. But somehow the “activists” are those of us who believe that the Constitution’s text and structure mean something.



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