The Corner

Poisoning the Well

Some quick thoughts on Obama’s comments earlier . . .

The other day, I wrote in the Corner that liberals are arguing that Obamacare “has to be constitutional because it has to be.” Today the president  said “We are confident that this will be upheld because it should be upheld.” Close enough.


He also said:

“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress.”

And finally, he said:

“With respect to health care, I actually continue to be confident that the Supreme Court will uphold the law. And the reason is because in accordance with precedent out there, it is constitutional. That’s not just my opinion, by the way, that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.”

I’m not sure that’s exactly a fair reading of the relevant rulings. But I will defer to others around here on that for the moment. My guess is this is a sign Obama is very worried the Court will throw out some or all of Obamacare, though he might also be trying to work the refs too, as it were.

I’m also unclear as to why he gives so little weight to Marbury v. Madison which established judicial review of laws, even those passed by a “strong majority of a democratically elected congress.” I don’t think it applies only to statutes passed by a weak majority. As Lachlan Markay tweeted, “SCOTUS struck down 53 federal statutes from 1981-2005. But one more would be illegitimate, per Obama.”

Of course, it’s not remarkable that Obama answered this way. He always tries to make his positions sound like they are the product of settled expert opinion, devoid of politics or ideology. “It’s not just my opinion . . .” that he’s right about the Constitution but also green energy, foreign policy, the evils of George W. Bush etc.

As vexing as all this is, what’s arguably more annoying is the way so many in the mainstream media are not just willing but eager to buy into this framing. We’ve talked Dahlia Lithwick and Linda Greenhouse to death around here already. But here’s ABC News’ Supreme Court reporter Terry Moran on “This Week” yesterday talking about the hearings:

But there was one big thing missing in the Supreme Court this week that most big cases have, a sense of real world example of how the law is really operating on a real human being. It hasn’t even really taken effect yet. And most of the time in our history, that causes courts to say wait a minute, we don’t give advisory opinions, we let it to go to work. This is an activist court, just as the courts of the 1950s and 60s were. We’ve now had half a century of judicial supremacy first on the left now of the right. They will do this.

It’s almost as if Moran doesn’t know the administration — i.e. the U.S. government –  asked the Court to take the case on an expedited basis or that if the Supreme Court hadn’t taken the case, Obamacare would be invalid in Florida, Georgia, and Alabama until it did. Different courts were in conflict on a massive federal statute involving a huge chunk of the national economy.

I think the argument that overturning Obamacare would be judicial activism doesn’t hold much water, but even if it did, Moran’s contention that even considering the case amounts to conservative judicial activism is ludicrous. And it’s very hard to see it as anything other than a mainstream news reporter carrying water for the administration.

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