Bench Memos

NRO’s home for judicial news and analysis.

NYT’s April Fool’s Joke


In yesterday’s New York Times, some pranksters managed to publish an over-the-top parody of a house editorial. Among other things, the parody version, on the basis not of an actual ruling but simply of last week’s oral arguments, unfavorably compares the Roberts Court to the Warren Court on the dimension of judicial activism. Chief Justice Earl Warren and Justice William Brennan Jr., it turns out, were “centrists” who “led the court to take new positions in carrying out democratic principles.” The fact that President Eisenhower, by his own admission, badly messed up in appointing the two justices gets twisted into praise that they “were not selected to effect constitutional change as part of their own political agenda.” Never mind that they did so anyway. 

The parody even contends that the four liberal justices are just “moderates” with “a leftish bent,” whereas the five “conservative justices”—yes, it miscounts Justice Kennedy (see, e.g., Planned Parenthood v. Casey, Lawrence v. Texas, Boumediene, Rasul, Hamdan, Lee v. Weisman, and the various Eighth Amendment/death penalty cases) as a conservative—were “handpicked … to reshape or strike down law that fails to reflect conservative ideology.”

By contrast, today’s Wall Street Journal includes these far more sober observations:

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 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 constitution’s “dual sovereignty” system—the 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 aren’t 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 government’s claim that it can force individual Americans to buy an insurance product—to engage in commerce—so 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.


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