Postmodern Conservative

Activism?

Well, it was my duty to read King v. Burwell to determine whether it merits being a last-minute inclusion in the seventh edition of American Political Rhetoric (which I edit with Bob Schaefer). In either case, the new edition will be ready for courses commencing in August.

The opinions probably weren’t worth waiting for (although the same-sex-marriage opinions surely will be).

I’m sympathetic with Roberts’s statesmanlike view that the judiciary is not the branch of government equipped, all alone, to save us from Obamacare. So he refuses an opportunity for “judicial activism.”

But, from another view, he turns out to be quite the activist, telling Congress what it really meant by its incompetently drafted, screwed-up law. And so if judicial activism is a synonym for judicial legislation, that’s what we have here.

Someone might say that Scalia was uncharacteristically the activist for wanting to strike part of the law down. But he claims to be doing the least activist thing by sending the law back to Congress. It should figure out what it really meant and then say that.

There is a political problem, of course. The current Congress ain’t nothing like the Congress that passed the law. And so it would decline to fix.

That, however, is arguably not the Court’s problem.

All in all, there are some interesting separation-of-powers issues here, as well as the one about the extent to which the Court should scope out the political environment before deciding whether or not to strike a law down.

A distinguished conservative scholar e-mailed me with the observation that the most significant part of Scalia’s opinion questions Roberts’s very manhood. I haven’t read any other learned commentary on the opinions, so I’m sure there’s a lot else that’s eluded me.

Peter Augustine LawlerPeter Augustine Lawler is Dana Professor of Government at Berry College. He is executive editor of the acclaimed scholarly quarterly Perspectives on Political Science and served on President George ...

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