Dana Milbank wants the Supreme Court to go along with the Obama administration’s rewriting of the Obamacare law by redefining the term “judicial activism.” It is, admittedly, a term that has been used in different ways. Some people use it to describe decisions that overturn well-established precedents; some to refer to decisions that depart from the text and original understanding of the Constitution; some to apply when courts strike down too many laws. Milbank’s article is the first I’ve seen that suggests it’s deplorable activism whenever a court makes a decision that would have large consequences. He doesn’t state this argument directly, which is probably a wise choice.
Obama’s appeal to the [five relatively conservative] justices, devotees of judicial modesty all: Do they really wish to cause the massive societal upheaval that would come from killing a law that is now a routine part of American life? . . .
[I]t’s difficult to imagine the Supreme Court justices taking away health coverage for 6 million or 7 million Americans, causing costs to skyrocket for millions of others, and likely plunging the entire American health-care system into chaos. That’s not just judicial activism — it would be a judicially induced cataclysm.
Of course the Court can’t be sure what the consequences of a decision for the plaintiffs would be. There might even be adverse consequences from the opposite decision, particularly if it established the idea that sufficiently far-reaching lawbreaking by the executive branch creates facts on the ground that courts will be too afraid to disturb.