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On The Phony Charge Of “Judicial Activism” From ObamaCare Supporters

This afternoon, President Obama held a joint press conference with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon after a day long meeting between the three leaders of the nations of North America, but the first question from the press was about last week’s ObamaCare hearings before the Supreme Court:

President Obama today said that he was “confident” that his signature Health care law would be upheld by the Supreme Court but warned that should the court rule the law unconstitutional, it would be an “unprecedented extraordinary event.”

“Ultimately I am confident that 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,” Obama told reporters today while speaking with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon.

Obama reminded reporters that conservative commentators, have complained about “judicial activism or a lack of judicial restraint,” that “an unelected group of people would somehow overturn a duly constituted and passed law.”

“Well, this is a good example and I’m pretty confident that this court will recognize this, and not take that step.” Obama insisted.

“I’m confident that this will be upheld because it should be upheld,” Obama concluded. “That’s not just my opinion, that’s the opinion of a whole lot of constitutional law professors, academics and judges and lawyers who have examined this law, even if their not particularily sympathetic to this piece of legislation or my presidency.”

Here’s the video:

As a preliminary matter, it probably ought to be noted that the President’s claim that the PPACA was passed by a “strong majority of a democratically elected Congress” isn’t exactly true. It passed the House of Representatives on a 219-212 vote and on a party line vote in the Senate. Moreover, as I’ve noted already, the public has been steadfastly opposed to the law from the beginning and has said more recently that they believe that the Supreme Court should strike the law down as unconstitutional. If that’s a “strong majority,” then the President has a rather odd idea of what “strong” means. More importantly though, and as attorney and Law Professor Obama must surely know, the fact that a particular piece of legislation may have passed Congress by a “strong majority” or a weak majority isn’t really a relevant legal argument. After all, if the President truly believes that the fact that a “strong majority” of Congress passed a particular piece of legislation is legally significant, then why is his Department of Justice taking the position that the Defense Of Marriage Act is unconstitutional?

It’s also a phony political argument.

We don’t live a country where Congress can do whatever it wants. Its powers are limited by the Constitution, and the Supreme Court is the final arbiter of the Constitutionality of a law at issue in any case brought before it. It is neither shocking nor unusual for the Supreme Court to declare an action by Congress, or one of the states, unconstitutional. With specific reference to the Commerce Clause, the Supreme Court has struck down two landmark pieces of legislation in the past twenty years. In United States v. Morrison, the Court determined that certain provisions of he Violence Against Women Act were unconstitutional because they were not a valid exercise of Congressional power under either the Commerce Clause or the Equal Protection Clause (the only parts of the VAWA that remain in effect are those that provide funding to domestic violence shelters and programs to reduce domestic violence). In United States v. Lopez, the Court found the Gun Free School Zones Act unconstitutional because it was not authorized under the Commerce Clause or any other portion of Article I, Section 8. Going back further in time, in the late 1970s, the Court found parts of the legislation that created the modern campaign finance law system unconstitutional under the First Amendment in Buckley v. Valeo. There are other examples from recent history where the Court has struck down major Congressional legislation including, the Independent Counsel Act, the legislative effort to grant the President a line-item veto, an effort by Congress to give itself the authority to overrule decisions by the Immigration And Naturalization Service, and a Congressional effort to make flag burning a federal crime in response to the Court’s decision in Texas v. Johnson. So the Supreme Court striking down an Act of Congress is neither unusual nor radical.

The President’s comments echo those that we’ve heard from many of his allies, including two former Reagan Administration lawyers who endorsed him in 2008 and are now being quoted (mistakenly I submit) as speaking for the the mainstream of conservative legal jurisprudence, claiming that the Supreme Court would be engaging in “judicial activism” if it were to strike down the Affordable Care Act. It’s a creative argument, largely because for a long time conservatives have promoted the idea of so-called “judicial restraint,” a philosophy best epitomized by Robert Bork, who advocates a judicial philosophy that is, if anything, even more deferential to the political branches of government than any of the most liberal members of the Supreme Court have ever been in favor of. Indeed, were Robert Bork on the Supreme Court today it’s quite likely that he would be a vote in favor of the Constitutionality of the Affordable Care Act.

However, judicial restraint is not necessarily an admirable philosophy. In its decisions in cases like Plessy v. Ferguson and Korematsu v. United States, the Supreme Court Justices of the time exercised restraint by deferring to majority opinion (something which Bork considers important for judges to do) and the results were disastrous, dishonorable, and wrong. By contrast, in Brown v. Bd. of Education, the Supreme Court of 1954 engaged in activism by not only bucking the will of majorities in a large part of the country but also by overruling precedent that had stood for nearly 60 years. Would those people denouncing a potential defeat for ObamaCare prefer it if the Warren Court had reaffirmed Plessy v. Ferguson in 1954? Somehow, I doubt it. The same goes for the landmark series of criminal law cases that Court decided, all of which finally gave some legal teeth to the rights and protections that James Madison had written in to the Constitution in 1791. To borrow a phrase from the Declaration Of Independence, the Supreme Court should not strike down duly enacted laws “for light and transient causes,” but there are times when it is not only necessary but required.

Will Wilkinson makes the case for judicial activism quite well:

As a practical matter, to refuse to rule in an “activist” fashion is to defer slavishly to precedent, whatever it might be, whether one believes precedent was based on “activist” reinterpretation or ignorance or error. Even then, interpretation of the implications of relevant precedent requires an interpretative framework. The least “activist” interpretative framework would be one in which judges attempt to interpret the relevant body of law as closely as possible to the intentions of the proximate lawmakers, whether they be legislators or other judges. Nobody does this. And why would they? It’s stupidly arbitrary. What if the intention behind prior rulings was ignorant, or perniciously ideological, or harmful?

Were we to make slavish deference to precedent universal law, ala Kant, we’d end up with what a sort of path-dependent judicial drift–tiny but unavoidable interpretative mutations piling up until the law ends up in places no one finds desirable.

This is why the whole argument about deferring to precedent is largely a canard. When deferring to precedent means enshrining or perpetuating a decision that was either obviously wrong or motivated by something other than a sober analysis of the law, pleas for “judicial restraint” are nothing more than an argument for perpetuating a mistake. At the same time, of course, long standing precedent should not be overturned “for light and transient causes” either. This is why Judges and Justices seek to distinguish the particular case before them from what might be asserted to be binding precedent, and why it is more common for precedent to be limited or distinguished than explicitly overruled. Sometimes, though, the facts and the law require that precedent be explicitly rejected. For example, if a future Administration were to undertake an action similar to the Roosevelt Administration’s internment of Japanese-Americans, one would hope that the Federal Judiciary would have the courage and fortitude to recognize Korematsu for the judicial travesty and legal error that it was and act accordingly.

The point? The point is that there’s nothing wrong per se with judicial activism, and there never has been.

Of course, as Allahpundit points out, Obama’s comments this afternoon have little to do with the law, and nothing to do with any particular philosophy of jurisprudence, and everything to do with politics:

This is just Obama laying the narrative groundwork for the benefit of all the non-lawyers watching at home who don’t know enough to fact check him. He wants to plant the idea that striking down the mandate would be the most unique, extraordinary, sensational, unbelievable, unprecedented decision in Supreme Court history evah so that, if it does happen, people will regard it as illegitimate and that’ll hopefully rally them to turn out in the fall.

Pretty much. It’s just interesting that it’s happening before the Court has even ruled in the case. After all, it’s still entirely possible that they will uphold the law and the mandate. Indeed, I would not be at all surprised if that happened. Nonetheless, the fact that the White House and its allies have already moved into damage control mode strikes me as an indication of how they think this case is going to turn out in the end.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Just 'nutha ig'rant cracker says:

    So it turns out that a politician is acting in the manner of politicians, left and right. I’m shocked.

    In other news: water is wet and

    General Franco is STILL dead!

    Thank you, Doug; once again you have stumbled onto the obvious.

    Like or Dislike: Thumb up 10 Thumb down 0

  2. Ron Beasley says:

    Judicial activism has always meant you disagreed with the decision nothing more. When the court is left it’s the right that complains. When the court is right the left complains. The SCOTUS is political because interpreting the constitution is ideological.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 2

  3. Tsar Nicholas says:

    Good blog.

    Not to nitpick, but you left out references to the SCOTUS smacking down Lincoln regarding habeas writs, smacking down Truman regarding the steel industry, smacking down Bush 43 regarding detention policies for terrorists, and tossing out so many of FDR’s “New Deal” legislative initiatives that FDR personally started lobbying Congress to give him a new and improved SCOTUS, so to speak.

    Indeed, the notion that throwing out Obamacare would be some sort of unprecedented action by the SCOTUS is so absurd you’d have to be a liberal to assert it.

    Lastly, what’s astonishing to me, and you’ve touched on this, is the extent to which the airheaded left already is in high dudgeon mode, even before the decision is announced!

    It’s not much more than a coin flip whether this thing will be thrown out. Kennedy could go either way. Even if the mandate were struck down Kennedy might split the baby and leave the rest of the statute in force. No matter what happens this won’t negatively affect Obama politically speaking. If you’re voting for Obama you’ll be voting for Obama. Hell, if anything, if the entire law gets tossed it could help Obama in November, as a large number of conservatives might use that as their final excuse not to vote for Romney. The line of thought (or lack thereof) being that without Obamacare then Obama is toothless and there’s no reason to “sully” themselves by voting for the Mormon, or whatever.

    In some respects this reminds me of when the loopy left in 2004 started saying that Bush definitely would be defeated and that if he wasn’t defeated it was the voting machines. Yeah, OK, have another Ritalin, Sparky.

    Hot debate. What do you think? Thumb up 7 Thumb down 16

  4. Chad S says:

    If you define “judicial activism” as striking down legislative action, its a fair charge. If you define it as “voting on personal preference instead of the law” it would apply to Scalia(he didn’t have any problem with the commerce clause regulating economic inactivity when it came to Raich v Gonzo).

    Its a political term meant to show how you disagree with a judicial opinion. Nothing more, nothing less.

    Like or Dislike: Thumb up 5 Thumb down 1

  5. @Tsar Nicholas:

    There are many, many examples from history of SCOTUS striking down actions by the other branches. I tried to limit my examples to those that were contemporary. But yes, those are applicable as well

    Like or Dislike: Thumb up 0 Thumb down 0

  6. OzarkHillbilly says:

    Doug, you are an idiot. An intelligent idiot, but an idiot none the less.

    The point? The point is that there’s nothing wrong per se with judicial activism, and there never has been.

    When was the last time you decried Republicans denigration of “Judicial activism”????

    I know you hate to admit when Obama has backed the hearse up to their door, but there it is….

    I await the post about Scalia dancing on the head of a pin… No. I am not holding my breath.

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  7. Robert Levine says:

    However, judicial restraint is not necessarily an admirable philosophy.

    Square that with the doctrine of stare decisis in this case. I don’t think you can. Sutton and Silberman sure couldn’t. And, of course, every nominee to the Court is required by the Judiciary Committee to pledge their allegiance to that fundamental doctrine.

    Not overturning Plessy is hardly the same as not overturning ACA. The individual mandate at the core of ACA was a perfectly acceptable idea amongst Republicans and conservatives as recently as 2007, when those endorsing Romney (such as DeMint) specifically stated that they hoped that Romneycare would become the law of the land. The mandate only became unconstitutional for most Republicans when it was passed by Democrats.

    By the way, 60 votes in the Senate is, at least in the real world, a “strong majority.” And I wasn’t aware there was a vote by the public where they “said more recently that they believe that the Supreme Court should strike the law down as unconstitutional.” The polling on ACA has consistently shown a substantial minority in favor with smaller minorities against either because they thought the law went too or didn’t go far enough And when did Fried and Kmiec cease to be conservatives? My recollection was that their endorsement of Obama was more about their belief that the Republican Party had morphed into something they didn’t recognize than about their becoming Democrats and resigning their memberships in the Federalist Society.

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  8. Hey Norm says:

    Um…a super-majority would be a strong majority.
    Shorter Doug: “I hate Obama.”

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 1

  9. And there were no supermajorities in the case of the PPACA

    Like or Dislike: Thumb up 1 Thumb down 11

  10. Dazedandconfused says:

    I suppose Obama might have said “Well, I really don’t know if it’s constitutional or not…”, but I suppose somebody would have pointed out how incredibly stupid it would have been to say that as well, and they too would have been correct. You have a point about the whole “judicial activism” thing. It’s mostly garbage, no matter who uses it.

    Read the other day that the government has the power right now to levy a tax, buy a case of broccoli with it, and deposit it on my porch. Is that true?

    Like or Dislike: Thumb up 6 Thumb down 0

  11. OldSouth says:

    Nonetheless, the fact that the White House and its allies have already moved into damage control mode strikes me as an indication of how they think this case is going to turn out in the end.

    Perhaps, because they knew all along it was a dodgy piece of work, and were simply assuming they could bluff their way through?

    They didn’t factor in an outraged populace that overturned the House, and came close to handing the Senate to the GOP as well.

    Oops…better get the spin machine going…

    Poorly-rated. Helpful or Unhelpful: Thumb up 0 Thumb down 16

  12. Chad S says:

    @Doug Mataconis: Obama said “strong” majority, no?

    Like or Dislike: Thumb up 6 Thumb down 0

  13. Hey Norm says:

    December 24, 2009…the Senate decides to proceed with HCR…60-39.

    Like or Dislike: Thumb up 8 Thumb down 0

  14. Jenos Idanian says:

    “Judicial Activism” means, to me and a lot of others, is courts either “making” laws or discovering new, previously-unknown “rights” — for classic examples, see Roe v. Wade or how gay marriage came to be in many states.

    Courts striking down laws they determine are unconstitutional is pretty much the essence of what courts are supposed to do.

    Here’s a little something that I learned in elementary school, but apparently escaped President Obama in his schooling, undergrad years, law school, and years of teaching Constitutional Law: Congress makes laws, the president enforces the laws, and the courts review the laws. That Obama would get bent out of shape because the Supreme Court might actually overturn a law that it finds unconstitutional shows that he has either no clue how our system works, or no concern how it works.

    Either way, he’s showing how unqualified he is for office.

    Poorly-rated. Helpful or Unhelpful: Thumb up 2 Thumb down 19

  15. Jenos Idanian says:

    @Hey Norm: You tend to like talking about things in purely political contexts. ObamaCare passed with 279 Democratic votes for, 217 Republican and 34 Democratic votes against.

    In brief, it was a purely partisan bill, but the opposition was bipartisan.

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 18

  16. Hey Norm says:

    All of this ignores the reality that when Scalia turns his back on his previous ruling on Interstate Commerce we will be back where we were…with an unsustainable Health Care System that costs too much and delivers mediocre results.
    And everyone crowing about a 5-4 decision on party lines…as though that means anything…have no ideas for how to deal with it.
    So let me be the first to congratulate you Doug and Jenos and TNick2…your team won.
    And the country is worse off for it.
    Of course that is of no concern to you. It’s all about your team.

    Like or Dislike: Thumb up 16 Thumb down 2

  17. Robert Levine says:

    @Doug Mataconis:

    And why did there need to be? Don’t see that in the Constitution.

    Like or Dislike: Thumb up 2 Thumb down 1

  18. Brummagem Joe says:

    It passed the House of Representatives on a 219-212 vote and on a party line vote in the Senate.

    So what? This is how most legislation is passed. If the court overturns it then by your own admission it’s choosing to overturn legislation passed specifically by Democrats. Given that a majority of appeals courts have already found it constitutional ( with some of the opinions being written by distinguished conservative jurists like Silberman) then SCOTUS is by definition guilty of judicial activism if it overturns it on a 5-4 party line vote. Furthermore they are disregarding well established stare decisis conventions regarding commerce clause law. The consequences of a rejection (which in spite of all the hoopla I still find less probable than it being upheld) will be serious whatever spin you want to put on it Doug.

    Like or Dislike: Thumb up 11 Thumb down 1

  19. Robert Levine says:

    Courts striking down laws they determine are unconstitutional is pretty much the essence of what courts are supposed to do.

    But they’re not supposed to change re-interpret the Constitution in new ways in order to strike down laws they don’t like on policy grounds. As I recall, it’s basic doctrine that what the Congress passes is assumed to be Constitutional absent a strong showing to the contrary.

    Like or Dislike: Thumb up 9 Thumb down 1

  20. JKB says:

    I’m confused, Nancy Pelosi said that they had to pass it to find out what was in in the law so how could there be an argument that it is constitutional because Congress passed it since they didn’t know what they were voting on?

    On the otherhand, Obama does offer a more articulate argument than Nancy Pelosi

    And let’s not forget Congressman Phil Hare (D-IL)

    Those two right there would be reason enough for the Supreme Court to take a hard look at this law given the Speaker of the House couldn’t articulate what was in the law before it was passed, can’t articulate how it was determined to be constitutional and she’d not the only one who voted for it who purposely didn’t honor their oath.

    Like or Dislike: Thumb up 2 Thumb down 14

  21. Jenos Idanian says:

    @Hey Norm: You seem to be operating under a few misconceptions. The second biggest one is that the current system is so bad that anything would be an improvement. The reality is, it took a bad situation and would have made it worse.

    The first one, of course, is you once again are jumping to conclusions well before all — or even enough — facts are in. Who would leak the Court’s leanings to Obama?

    Let’s see… Kagan was his Solicitor General, and her job would have been to prepare to defend the law before the Court. That should have made her recuse herself from the case. Her saying she’d had nothing to do with the law showed that she was abandoning her duties to prepare for her next job… kind of like Obama abandoning his Senate duties to run for president. He kept his end of the deal, putting her on the Court; maybe she’s paying him back by giving him the inside skinny?

    Like or Dislike: Thumb up 1 Thumb down 13

  22. Brummagem Joe says:

    After all, it’s still entirely possible that they will uphold the law and the mandate. Indeed, I would not be at all surprised if that happened. Nonetheless, the fact that the White House and its allies have already moved into damage control mode strikes me as an indication of how they think this case is going to turn out in the end.

    Actually Doug in political terms it just means they’re covering their bases. Like you and me they probably think the odds are it will be upheld but are just taking out a little insurance. I’d expect no less from such a shrewd political operator as the president.

    Like or Dislike: Thumb up 5 Thumb down 0

  23. Jenos Idanian says:

    @Robert Levine: You’re arguing the merits of the case, not the larger issue of “activism.” The nuances of why the Court might vote it down are a real, real stretch for “judicial activism.”

    Like or Dislike: Thumb up 1 Thumb down 6

  24. Hey Norm says:

    Jenos…yes that is the talking point of your team.
    The fact is that it worked in Mass and is working nationally.
    As is per usual the facts don’t match your ideology.

    Like or Dislike: Thumb up 6 Thumb down 0

  25. David M says:

    @Jenos Idanian:

    “Judicial Activism” means…courts either “making” laws or discovering new, previously-unknown “rights” — for classic examples, see Roe v. Wade or how gay marriage came to be in many states.

    Courts striking down laws they determine are unconstitutional is pretty much the essence of what courts are supposed to do

    I know I probably shouldn’t take the bait, but that’s seriously impressive nonsense even for you. 100% pure unadulterated right wing bs that sums up what a total fraud the GOP’s campaign against “judicial activism” has been. (Unfortunately, as you actually typed those two “thoughts” together, I guess I do have to point out that the Supreme Court struck down a law it determined was unconstitutional in Roe v Wade.)

    Judicial Activism has always meant that the judge ruled the wrong way, and liberals pointed out for years that was all it meant, but the GOP / right wing always pretended it was something real. It wasn’t real, it was a way to try and win elections.

    Like or Dislike: Thumb up 14 Thumb down 1

  26. An Interested Party says:

    The first one, of course, is you once again are jumping to conclusions well before all — or even enough — facts are in.

    Ha! That’s quite a laugh, coming from you

    That should have made her recuse herself from the case.

    Yeah, she could of done that along with Clarence Thomas

    Like or Dislike: Thumb up 9 Thumb down 0

  27. Jenos Idanian says:

    @David M: Some states passed gay marriage by legislative action, and that’s cool. Others had courts just up and decided that there was a “right” that had been overlooked for years and years, and that’s not cool.

    Roe v. Wade… the court’s ruling was that it fell in the “penumbra” of a previously-undefined “right to privacy.” That was some major-league spelunking.

    But here… the Court’s just doing what the Court’s done for centuries; deciding if a law is Constitutional or not. I’m surprised that President Obama hadn’t heard about that at Occidental, or Columbia, or Harvard, or even the University of Chicago. Odd little blind spot…

    Like or Dislike: Thumb up 2 Thumb down 15

  28. Jenos Idanian says:

    @An Interested Party: At least you’re consistent. I recall you were equally incensed when then-Senator Obama secured a hefty earmark for his wife’s employer, who promptly turned around and gave her a hefty raise… at a job that was so critical to the hospital’s functioning, they never bothered to fill it after she resigned.

    And how dare Ginny Thomas think she’s entitled to her own career, her own interests, her own life? That sort of thing is only reserved for LIBERAL wives.

    Like or Dislike: Thumb up 2 Thumb down 11

  29. wr says:

    So Doug finds himself in agreement with both the Tsar and Jenos. He must feel so proud.

    Like or Dislike: Thumb up 16 Thumb down 2

  30. An Interested Party says:

    And how dare Ginny Thomas think she’s entitled to her own career, her own interests, her own life?

    Gustopher wrote it best…

    Ginny Thomas has a constitutional right to any job she can get, but Clarence Thomas has a responsibility and obligation to recuse himself when there is a conflict of interest. Why is that hard to understand?

    Like or Dislike: Thumb up 14 Thumb down 0

  31. anjin-san says:

    Guys, please don’t feed Jenos Tedium. This person has single handedly lowered to quality of this blog, and it is one of the few ones worth spending time on.

    Like or Dislike: Thumb up 16 Thumb down 2

  32. Boyd says:

    @anjin-san: Ha! That’s a laugher!

    Like or Dislike: Thumb up 1 Thumb down 13

  33. Steve V says:

    When the court has struck down laws passed by conservative administrations their definition of “activism” is that some ivory-tower guys in robes are substituting their judgment over the “will of the people.” I heard quite a bit of this whenever the court undermined Bush 43 policies (I assume the national security rulings but can’t remember now). The definition of “judicial activism” really is just “whatever gores my ox.”

    Like or Dislike: Thumb up 6 Thumb down 0

  34. Jenos Idanian says:

    @Steve V: Oh, come on, Steve. If you’re so confident and certain that conservative-backed laws being struck down have been denounced as “judicial activism,” then you can certainly cite at least one or two examples, right?

    And back to the main point… this is not the first time Obama’s attempted to publicly intimidate the Supreme Court. Remember his lying about Citizens United at the State of the Union? It seems that our smartest president ever, the great Constitutional scholar, has a real problem with the concepts of “separate but co-equal branches” and “checks and balances” and “separation of powers.”

    And speaking of Citizens United and foreign money influencing our elections… the Obama campaign is, once again, going out of its way to accept illegal –including foreign — contributions. I wonder how much they’ll raise from the Palestinian Territories this time around?

    Like or Dislike: Thumb up 1 Thumb down 13

  35. Todd says:

    @Ron Beasley:
    @Ron Beasley:

    Like or Dislike: Thumb up 1 Thumb down 0

  36. Todd says:

    I always understood the SCOTUS determined whether a case brought before them was constitutional or not, based on what the constitution says, not on how they interpret the constitution. Where am I wrong? Maybe this is why we have so many 5-4 decisions and why one of the most important things a sitting President does is nominate a Surpreme Court Justice. The Court should not be political and should never be called out or interfered with as President Obama has done on two occasions. Can anyone remember is first State of the Union address? Justice is supposed to be blind and unbiased and based on the written law not what one thinks the written law says. That is why we have an ammendment process. If we don’t like the way a law reads, or it is unclear, or leads to the violations of a persons rights, ammend it..

    Like or Dislike: Thumb up 0 Thumb down 1

  37. Brummagem Joe says:

    One of the major reasons the judicial activism label will stick if this is overturned on a 5-4 vote is that the ACA has been found to meet the constutionality test by a majority of appeals courts including some containing notable conservative justices. Doug never addresses this issue for obvious reasons. But unless people like Silberman are complete legal doofuses it’s going to be hard to argue that a supreme court that everyone knows is divided 5/4 Republican/Democrat has not rejected Democratic passed legislation on a 5/4 party line vote for other than partisan reasons. It simply will not pass the smell test. Perhaps Doug doesn’t know what the smell test is but since he’s obviously hoping the act will be rejected he’s not exactly neutral. This partisanship has already led him to dismiss the effects of such an act on the courts legitimacy and although I’m not a lawyer I think he’s seriously underestimating the short and long term consequences politcally, administratively and legally. They are going to be considerable.

    Like or Dislike: Thumb up 11 Thumb down 0

  38. Hey Norm says:

    Look…this is judicial activism because SCOTUS with this decison is going to be making policy…as they did with Citizens United and Bush v. Gore. They are ignoring precedents…some written by members of this court…and in doing so they are going to hamstring Congress…concievably for decades. Even so-called conservative wet-dreams like school vouchers and the privatization of Social Security could be impacted. How is the Legislative Branch supposed to function if precedents now mean nothing and the Constitutionality of any particular item depends on the whim of a partisan court?
    If I believed in God I would thank her for the Founding Fathers…because the intellectually dishonest politicians in the Republican Party today couldn’t begin to form a sustainable Nation.

    Like or Dislike: Thumb up 10 Thumb down 0

  39. Jenos Idanian says:

    @Todd: I always understood the SCOTUS determined whether a case brought before them was constitutional or not, based on what the constitution says, not on how they interpret the constitution. Where am I wrong?

    Here’s a pointer in where you’re wrong: distinguish “what I interpret the Constitution to say” from “what the Constitution says.”

    We all act on our perceptions and interpretations. There isn’t some “objective reality” that distinguishes from what one sees as reality to what is really real. It’s the role of judges — even Justices — to interpret the Constitution as it applies in particular cases, based on their intellect, experiences, education, and training. In theory, they’d all come to the same conclusions, but that theory doesn’t hold up when you remember that judges are human beings.

    The Constitution is wonderful for guiding principles and general rules, but it — deliberately — is vague on details. That’s why it’s possible for people of good conscience to argue that ObamaCare is perfectly Constitutional, and for others of equally good conscience to argue that it’s a violation of the Constitution. That’s why we have systems for settling such disagreements.

    Like or Dislike: Thumb up 2 Thumb down 1

  40. Jenos Idanian says:

    @Hey Norm: Look…this is judicial activism because SCOTUS with this decison is going to be making policy…

    And if they let it stand, they will equally be “making policy.” And they will be perceived as cowing to presidential intimidation.

    Actually, they won’t. They will be applying the underlying principle of stare decisis to the whole issue — “let things stand as they are, do not make this vast, sweeping change.”

    No matter how they decide, they will be affecting policy. And that is their Constitutional role — to make certain new policies are in line with the Constitution.

    But as Glenn Reynolds noted, if the outrage about these “unelected officials” making policy is so sincere, let’s remember that it was this same body that gave us Loving and Roe v. Wade, and let’s strip the president of the power to appoint Justices (such as Kagan and the “wise white Latina” Sotomayor) and make Supreme Court Justice an elected position. Won’t that make everything better?

    Like or Dislike: Thumb up 2 Thumb down 8

  41. Jenos Idanian says:

    @Hey Norm: Hyperpartisan hack denounces partisanship. Wow, my head won’t stop spinning. And look at the pretty colors…

    Like or Dislike: Thumb up 1 Thumb down 7

  42. Rob in CT says:

    Charges of judicial activism have always been silly. This is an attempt at turnabout (to the extent the mandate is even struck down) from a Democrat, nothing more.

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  43. @OzarkHillbilly:

    When was the last time you decried Republicans denigration of “Judicial activism”????

    Perhaps you missed my posts about Newt Gingrich’s attacks on the Federal Judiciary.

    Or my post about the comments that the other GOP candidates have made about judges.

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  44. @Robert Levine:

    The individual mandate at the core of ACA was a perfectly acceptable idea amongst Republicans and conservatives as recently as 2007,

    Which is wholly irrelevant to the question of its Constitutionality. As are the opinions of lower Federal Judges. Circuit Court Judges are bound by Supreme Court precedent, not the other way around. And, the Supreme Court is, as I have said repeatedly, free to ignore, distinguish, modify, or completely overrule any of its previous rulings.

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  45. @Brummagem Joe:

    So what? This is how most legislation is passed.

    I am not the one arguing that the bill passed by “strong majorities” as if that is at all relevant to the legal issues before the Court. That was the President.

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  46. James H says:

    Judicial activism is when a judge disagrees with you.

    Like or Dislike: Thumb up 9 Thumb down 0

  47. @James H:

    That pretty much sums it up

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  48. Hey Norm says:

    @ Jenos…
    I may appear partisan to you…but that is because your “team” is so far off the starboard bow that the center now looks like an extreme to folks like you and Doug and TNick2.

    Like or Dislike: Thumb up 6 Thumb down 1

  49. Hey Norm says:

    “…Which is wholly irrelevant to the question of its Constitutionality…”

    As were the vast majority of the questions asked by the so-called conservative justices.
    This 5-4 decision will only be a statement of the policy choices of 9 judges…something Scalia has railed against in the past…and is now a enthusiastic practitioner of.
    Stop trying to kid yourself that it’s about Constitutionality.

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  50. MBunge says:

    @Doug Mataconis: “And, the Supreme Court is, as I have said repeatedly, free to ignore, distinguish, modify, or completely overrule any of its previous rulings.”

    And correct me if I’m wrong, but Congress is also free to impeach Supreme Court Justices and pass laws that are beyond review of the court. I also believe the President can say “the Supreme Court ruled that way, now let them enforce it”.

    Your libertarian leaning toward childish anarchy is showing, Doug.

    Mike

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  51. Wayne says:

    This pretty much sums up judicial activism.

    The left thinks “Judicial activism has always meant you disagreed with the decision nothing more.”

    The right thinks “Judicial Activism” means, to me and a lot of others, is courts either “making” laws or discovering new, previously-unknown “rights”

    Any particular case may be debatable. However the left only cares how they view it and getting their way. The right cares how they view it but also take into account if it fits their definition of judicial activism. For example if the “Supreme Court” decided to make up a law by saying that all Government must balance their budget, the right would support the idea but would not support the courts action. IMO Congress should pass such a law for the federal level but that is Congresses power not the courts.

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  52. @MBunge:

    They can impeach Justices for the same reason they can impeach Presidents, high crimes and misdemeanors. Rendering a decision that Congress disapproves of is not a proper ground for impeachment.

    I suggest you read up on the one and only time Congress tried to do what you suggested, the attempted impeachment of Justice Samuel Chase. That was 1805.

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  53. Tsar Nicholas II says:

    Wow, this thread still is going? A lot of bandwidth is being devoted to what at present purely is a hypothetical issue.

    Separate but related topic, germane given the peculiar demographics of Internet blogs and their readers:

    It won’t be perceived as such, for obvious reasons, but if the Court throws out Obamacare in its entirety it’ll actually be quite good news for the denizens of Gen. Y.

    With Obamacare on the books so many companies would remain in modes of firing people or not hiring people, to stay under 50 workers and thus out of Obamacare’s orbit, and so many states, counties and cities would go (further) broke dealing with the Medi-Caid expansion, the job prospects for Gen. Y would for decades remain gruesome. Granted, at present and over the near term, the job prospects for that generation in any event are gruesome, but at least if Obamacare is tossed out the statute itself no longer would serve as a de facto hiring moat.

    Food for thought, is all.

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  54. Jenos Idanian says:

    @MBunge: And correct me if I’m wrong, but Congress is also free to impeach Supreme Court Justices and pass laws that are beyond review of the court.

    Doug’s taken the first one; I’ll tackle the second. No, Congress can’t say “this law is not subject to review by the Courts.” See “Checks and Balances.”

    Let me add another example: Congress has occasionally impeached lesser judges. One of them, removed from office for corruption, is now a leading member of the Congressional Black Caucus.

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  55. Wayne says:

    @MBunge
    And a President can be impeached. Doing any of those actions are not without their consequences. I’m not sure what laws beyond constitutional amendments are beyond the review of the courts. Impeaching a Supreme Court Judge typically would be difficult to accomplish and usually cause great backlash as would a President ignoring the law and acting like a dictator.

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  56. Jenos Idanian says:

    @Wayne: Plus, impeachment proceedings have to start in the House…

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  57. Brummagem Joe says:

    @Doug Mataconis:

    I am not the one arguing that the bill passed by “strong majorities” as if that is at all relevant to the legal issues before the Court.

    So according to the legal doctrine of Doug the supreme court owes no deference whatever to majority votes in both houses of a co-equal branch of govt. Votes that have been found to be constitutional by a majority of appeals courts who have already heard this case.

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  58. MBunge says:

    @Doug Mataconis: “They can impeach Justices for the same reason they can impeach Presidents, high crimes and misdemeanors. Rendering a decision that Congress disapproves of is not a proper ground for impeachment.”

    And who determines what’s the proper grounds for impeachment? Why, I do believe that’s Congress! Hmm, I wonder if Congress could make the situation around Justice Thomas’ wife into a “misdemeanor”? Why, I believe they could! After all, who’s going to stop them?

    Mike

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  59. @MBunge:

    Your disrespect for Separation of Powers when it potentially might frustrate your agenda is quite apparent

    Like or Dislike: Thumb up 1 Thumb down 2

  60. Jenos Idanian says:

    @Brummagem Joe: So according to the legal doctrine of Doug the supreme court owes no deference whatever to majority votes in both houses of a co-equal branch of govt.

    Damned straight. That’s why Justices get lifetime appointments; to help immunize them from political swaying. “If a thousand people do a silly thing, it is still a silly thing.” Constitutionality isn’t decided by polling.

    Votes that have been found to be constitutional by a majority of appeals courts who have already heard this case.

    Then why do we even bother having higher courts, if the rulings of lower courts are supposed to be sacrosanct? Look at the 9th District — they’re always getting overturned.

    You’re not arguing from any coherent principles, just “whatever gets my side to win.” You want the rulings that you disagree with overturned, but let stand the ones you agree with. It don’t work that way.

    Thank God it don’t work that way.

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  61. @Brummagem Joe:

    Some deference, not complete deference

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  62. MBunge says:

    @Jenos Idanian: “No, Congress can’t say “this law is not subject to review by the Courts.” See “Checks and Balances.””

    “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    Mike

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  63. Jenos Idanian says:

    Here, I’ll throw the other side a few bones: Kelo was a wrong decision, but it wasn’t “judicial activism.” It was a case of a city overreaching its rights, and the Court letting it stand. The Court should have smacked it down, but it didn’t create a new right out of whole cloth.

    “Dred Scott” was a wrong decision, based on the principle of “stare decisis.” They let stand a bad ruling. Not “judicial activism.”

    “Plessy v. Ferguson” was another bad decision that wasn’t judicial activism. It stood for about 60 years. Had the Court gone along with precedent, it would have ruled differently in Brown v. Board of Education, and allowed the wrong decision to stand simply because it was precedent.

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  64. @MBunge:

    Yes it does say that. And it is such a controversial provision that Congress has never actually exercised it. And that’s a good thing.

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  65. MBunge says:

    @Wayne: “And a President can be impeached. Doing any of those actions are not without their consequences.”

    Except, what are the consequences to the Supreme Court?

    Mike

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  66. MBunge says:

    @Doug Mataconis: “Yes it does say that. And it is such a controversial provision that Congress has never actually exercised it. And that’s a good thing.”

    So, Congress should not excercise the powers given to it…but the Supreme Court should exercise the powers given to it?

    Mike

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  67. Jenos Idanian says:

    @MBunge: I’m not certain what you mean — it seems you’re asking how Congress impeaching the President would affect the Court. One would be it would disrupt the Chief Justice’s schedule, as he (or, someday, she) presides over the Senate trial.

    Like or Dislike: Thumb up 1 Thumb down 1

  68. Jenos Idanian says:

    @MBunge: OK, I’m gonna have to look at that… I seem to think there’s a context missing there.

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  69. @MBunge:

    Please tell me why you think it would be a good idea for Congress to deny people the right to challenge its actions in Court.

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  70. Jenos Idanian says:

    @MBunge: That section seems to say, to me, discussing in which cases the Supreme Court has primary jurisdiction vs. appellate jurisdiction — not whether or not the court has any jurisdiction.

    Here’s the full text of Article III, Section 2:

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

    The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

    The first sentence seems to say that the Courts always have jurisdiction. And I recall an example under Bush — Guantanamo. They kept detainees there precisely to keep them out of the reach of US Courts. If Congress could declare certain matters off-limits to the Courts, I suspect the Bush administration would have pursued that option, too.

    This is the point where the actual lawyers will jump in and correct me, I’m sure…

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  71. Jenos Idanian says:

    @MBunge: See “Nuclear Option.”

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  72. Hey Norm says:

    “…That’s why Justices get lifetime appointments; to help immunize them from political swaying…”

    And yet Scalia sits on the bench spewing Tea Stained Talking Points that have no relation to the case at hand.

    “…Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli…”

    Guess it’s just not working.

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  73. Jenos Idanian says:

    @Hey Norm: Apparently, when you were at a very young and impressionable age, someone told you that if you call something a “talking point” often enough and loud enough, that automatically makes it false and that’s all you have to say to dismiss something.

    Whoever told you that did you a grave disservice.

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  74. Hey Norm says:

    Jenos…
    That you do not recognize the “Broccoli Argument” as a talking point tells everything about you that any one needs to know.

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  75. Hey Norm says:

    @ Jenos…
    Perhaps you would prefer Scalia’s comments re: the “Cornhusker Kickback”…soemthing that is neither a kickback, nor part of the law. But why would we expect a Justice to actually be familiar with the law he or she is reviewing? All they need do is be familiar with approved Talking Points.

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  76. Hey Norm says:

    Oh yeah…and caveat their opinion with:

    “…limited to the current circumstance…”

    Like or Dislike: Thumb up 4 Thumb down 1

  77. @Hey Norm:

    Perhaps you would prefer Scalia’s comments re: the “Cornhusker Kickback”

    If you read the transcript, you’d know that Scalia was posing a hypothetical question related to the severability issue, he wasn’t saying it’s actually in the bill. As for where it may have come from, perhaps there’s a clue in the 1500+ pages of briefs that were submitted in this case.

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  78. Wayne says:

    @MBunge
    Many of the same consequences as impeaching the President. Impeaching unjustly a Supreme Court judge would have a greater backlash than going after a President.

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  79. Hey Norm says:

    @ Doug…
    So it’s like Jon Kyl…it wasn’t meant to be factual?
    You and Jenos and TNick2 crack me up.

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  80. Jenos Idanian says:

    @Hey Norm: Forget “doubling down on stupid.” You’re up to about quintupling.

    Here, in simple language, are your mistakes:

    1) You seem to think that just because you call something a “talking point,” that makes it one.

    2) You seem to think that the term “talking point” means “lie.” “Talking points” tend to be true. They occasionally include a bit of spin, but they have a germ of truth at them — otherwise they’d be called “lies.”

    Now, the Cornhusker Kickback deserves its own set of responses.

    1) It was put into the bill originally by the backers, so they obviously had no problems with it.

    2) It was removed from the bill not as a matter of principle, but because of huge public outcries.

    So it’s a fair reflection of the intent of the bill’s backers.

    Now go find some fresh “talking points.” You’re really picking up the bad ones.

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  81. Hey Norm says:

    Jenos…
    You seem to think saying something is not a talking point makes it not a talking point…which is like Paul Ryan changing Medicare but still calling it Medicare so it is Medicare.
    Facts:
    The Broccoli argument is an extremist talking point that has no applicability to the case and was repeated by a Justice as though it does.
    The CornHusker Kickback was never a kickback, is not in the law, and is an extremist talking point and was repeated by a Justice as though it were.
    Respond if you must…but I’m done wasting my time with your partisan nonsense.

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  82. Jenos Idanian says:

    @Hey Norm: Shorter Norm: Reality is what I define it as, and if you dare contradict me, you’re a lying partisan hack.

    And TALKING POINTS!!!!!!!!!!!

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  83. Hey Norm says:

    A Talking Point is propaganda…used to frame an argument in a way that elicits a favorable response from those sympathetic to their point of view…and repeated ad nauseum until it is taken as fact. Such as the “Broccoli Argument” or the “Cornhusker Kickback”.

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  84. Jenos Idanian says:

    @Hey Norm: Or see “Citizens United means foreign corporations can give as much money as they want to US elections.”

    The difference, my dear Normie, is that the one I quoted is a provable lie. The ones you cited are debatable.

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  85. Jenos Idanian says:

    @Hey Norm: Oh, and if you wanna talk about what’s in the law and what isn’t… there WAS a severability clause, but Congress chose to take it out. So, to me, that says that Congress wasn’t interested in letting part of the bill stand; it’s all or nothing. So the Court, by rights, ought to either allow the whole thing or (preferably) strike it all down in its entirety, as Congress CHOSE to not include the possibility of keeping parts of it.

    Right?

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  86. Wayne says:

    One more thing, Obama claimed that it would be unprecedented for the Supreme Court to overturn the law passed by congress. He was wrong on so many many levels. Where are the accusations of him being an idiot, stupid, clueless about history, etc? It is sure as hell more idiotic than if a bell was rung or not during Paul Revere’s ride.

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  87. Hey Norm says:

    “…Where are the accusations of him being an idiot, stupid, clueless about history, etc?”

    I think you just made the accusation Wayne.
    Which is appropos.

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  88. SHOES THROWER says:

    To clarify deference to precedent, the author apparently argues that the Supreme Court must not always do this, but be willing to confront precedent if it was wrongly decided.

    All other courts, of course, must defer to Supreme Court precedent.

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  89. MBunge says:

    @Doug Mataconis: “Please tell me why you think it would be a good idea for Congress to deny people the right to challenge its actions in Court.”

    In case you’ve forgotten, what we’re talking about is your contention that the Supreme Court is
    “as I have said repeatedly, free to ignore, distinguish, modify, or completely overrule any of its previous rulings”. Which is entirely true. But as everyone knows, that’s not the operating principle the Court usually follows. The operating principle is that once the Court has established a precedent, no matter how long ago it was, that precedent is allowed to stand absent a truly overwhelming argument to the contrary. Likewise, Congress has the theoretical authority to declare laws beyond judicial review, but that’s not the operating principle Congress has followed.

    So, this is what we’re talking about. If the Court is now going to exert its authority to, essentially, unmake 70+ years of established legal precedent and demolish 70+ years of political action that was based on that precedent…why should Congress NOT exert its authority in opposition to such radicalism? What “check” exists to the power of the Supreme Court, if The People believe that power is being misused or abused? Do we live in a Democracy or do we live under the tyranny of whatever fringe ideology rules the thinking of 5 Justices?

    Mike

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  90. @MBunge:

    You are making the assumption that a ruling finding the mandate unconstitutional would result in the court overruling any precedent at all

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  91. MBunge says:

    @SHOES THROWER: “To clarify deference to precedent, the author apparently argues that the Supreme Court must not always do this, but be willing to confront precedent if it was wrongly decided.”

    That’s pretty much what everyone believes. The dispute is how to figure out what “wrongly decided” means and, just as importantly, what can everyone else do if they believe the Supreme Court has wrongly disregarded precedent.

    Mike

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  92. MBunge says:

    @Doug Mataconis: “You are making the assumption that a ruling finding the mandate unconstitutional would result in the court overruling any precedent at all”

    Doug, I realize that libertarianism almost requires a certain amount of deliberate obtuseness, but you’re better than that.

    Mike

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  93. @MBunge:

    Just becasue you think that current precedent requires the decision go a certain way that doesn’t mean its true. Besides which you clearly are not understanding the full implication of the idea that the Court is free to “ignore, distinguish, modify, or completely overrule any of its previous rulings”

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  94. Hey Norm says:

    Hey Wayne…
    I’m curious…has SCOTUS overturned a law that dealt with the Commerce Claus or the Economy since the New Deal?

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  95. Hey Norm says:

    Anyone?

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  96. mattb says:

    @Jenos Idanian:

    If you’re so confident and certain that conservative-backed laws being struck down have been denounced as “judicial activism,” then you can certainly cite at least one or two examples, right?

    While it’s not recent, this happened a few times during the Warren court years. As Doug mentions in his article, Brown v. Board is a perfect example of this. Miranda was another example (though in that case it was an extension of rights versus the explicit striking down of a rule).

    At the time conservatives were up in arms about this. Warren had been expected to be a strong conservative and a defender of “judicial restraint” (though the term was not part of the popular vernacular at the time).

    Following those decisions, “Impeach Warren” signs and campaigns sprung up across the more conservative sections of the US and the John Birch society launched a long standing campaign to impeach Warren.

    While Judicial Activism was not necessarily a term that existed at the time, it’s clear that the equivalent was often levied against his court.

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  97. Steve V says:

    @Jenos Idanian:

    I’m a bit busy to search the internet for every Bill O’Reilly column complaining about “judicial activism” representing a court substituting its will for the legislature’s, but I did run across this from some guy named James Joyner with regard to the California Supreme Court’s decision regarding same-sex marriage:

    “So, yes, I ultimately think this was judicial activism. The majority overturned centuries of precedent in overturning recent law reinforcing that precedent. In overturning the clear will of the legislature and the electorate to do something that they’ve always had a right to do, the court substituted their preferred policy outcome. That’s not their assigned role in the system.”

    http://www.outsidethebeltway.com/judicial_activism_versus_judging/

    I’m sure there are innumerable other variations on this complaint from conservatives that can be found if one expands one’s search beyond OTB.

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  98. Norm,

    As I noted in the post, you can point to the Lopez and Morrison cases for that.

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  99. Hey Norm says:

    Morrison struck down parts…and Lopez did not concern the economy.
    Thanks.

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  100. Both concerned the Commerce Clause as that was the only justification for Congress to pass the laws in question in the first place

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  101. Brummagem Joe says:

    @Doug Mataconis:

    Besides which you clearly are not understanding the full implication of the idea that the Court is free to “ignore, distinguish, modify, or completely overrule any of its previous rulings”

    Indeed it is Doug but as M. Bunge keeps reminding you this is not the generally accepted principle on which the court operates unless there is some huge social, legal or economic evil being perpetrated. If the court disregards over 70 years of precedent to overturn this piece of Democratic legislation on a 5/4 party line vote they will be justly accused of legal activism in policy making. In fact as someone said on a thread the other day they are effectively nullifying stare decisis as philosophical principle on which the court operates despite the fact that Roberts and Alito swore on a stack of bibles to respect it. You think the consequences are going to be negligible but I’m going to predict you’re as wrong about this as you were about the political impact of the women’s health debate.

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  102. Catfish says:

    Activist judges ? Where was Obama when the peoples’ choice was overturned by a Federal judge out in California concerning Proposition 8? At least that was a legal vote organized by citizens, not some new government program that was passed by political hacks like Pelosi and Reid. Judges should not be allowed to overturn what has been decided by a majority of voters, and that includes the Bush-Gore disaster.

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  103. @Brummagem Joe:

    I’ve said nothing about what I think the consequences of this are I am merely making observations over the panicked, and somewhat hypocritical, reaction to the possibility that the PPACA may go down from Obama and his supporters.

    Do I think voters might be dumb enough to fall for a populist rabble rousing campaign by the President over a Supreme Court decision that didn’t go his way? Well, as H.L. Mencken said, nobody ever went broke underestimating the intelligence of the American voter.

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  104. Tsar Nicholas says:

    Oh, my goodness. This thread still is going on? Yikes.

    One thing about this erstwhile debate that’s always perplexed me is the extent to which even those opposing the individual mandate simply have taken it for granted that all of those people who would be required to purchase individual health insurance coverage thereby would be factored into the premium ratings calculations in such ways as substantially to lower overall premium costs.

    Bunk.

    The fines prescribed by Obamacare cost a lot less than the prices of non-group health insurance coverage, especially for those who are up there in age, or with substantial numbers of dependents, or those who would wish if they had to purchase health coverage to participate in a HSA plan.

    Nobody ever discusses this, do they?

    How many people simply will refuse to buy health insurance coverage, despite the mandate, and take the risks of not getting caught or in lieu of the premium costs simply will pay the fines? Lots of people would do just that. Tens of thousands? Hundreds of thousands? I don’t know. It would be a lot more than a few, however. We’ve seen that phenomenon before, with auto insurance. Vast sums of people don’t maintain auto insurance coverage, despite various civil and criminal mandates to the contrary. Hell, an entire industry has developed in the wake of that reality, for uninsured motorist coverages and related arbitration claims.

    If Obamacare is upheld in its entirety I think in several years we’ll all be sitting around “surprised” by the fact that health insurance premium costs have done nothing but continue in the interim to rise. Well, some of us won’t be surprised.

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  105. Brummagem Joe says:

    @Doug Mataconis:

    I’ve said nothing about what I think the consequences of this

    Not in this thread but in previous comments you have been fairly dismissive of the consequences.

    Do I think voters might be dumb enough to fall for a populist rabble rousing campaign by the President over a Supreme Court decision that didn’t go his way? Well, as H.L. Mencken said, nobody ever went broke underestimating the intelligence of the American voter.

    And this if I may say is a rather shallow comment. The consequences of a rejection are going to be far reaching (legally, politically, economically and administratively)@Catfish: and of long duration, far longer in fact than Obama’s presidency even assuming he wins a second term.

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  106. Brummagem Joe says:

    @Tsar Nicholas:

    If Obamacare is upheld in its entirety I think in several years we’ll all be sitting around “surprised” by the fact that health insurance premium costs have done nothing but continue in the interim to rise.

    Faster than the 9% a year they’ve averaged for the last 25 years you mean Nicko in our gloriously free market system that costs twice as anyone elses. Your American exceptionalism triumphs again.

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  107. Brummagem Joe says:

    @Tsar Nicholas:

    How many people simply will refuse to buy health insurance coverage, despite the mandate, and take the risks of not getting caught or in lieu of the premium costs simply will pay the fines?

    Why not look at the numbers for MA Nicko where the likely Republican nominee for president ran the successful pilot program?

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  108. Tsar Nicholas says:

    @Brummagem Joe: Joe, you’re kidding, right? Um, premium costs in Massachusetts have skyrocketed over the past several years, far outstripping the inflation rate. The premium cost increases in Mass. have kept pace with the national average. For Pete’s sake, Joe, Bay State residents have the highest overall premium costs in the entire nation. Didn’t you pay any attention to the GOP primary? That’s one of the reasons why everyone was bashing Romney over the head like a red-headed stepchild. Hell, even the Boston Globe — no opponent of government healthcare — was forced to write article after article detailing the continued increases, post-Romneycare, in premium costs. That’s what they’re working on now in Massachusetts: cost controls. Gov. Patrick also has been lobbying the health insurance industry to keep down premium increases for group coverages.

    Joe, Romneycare was a “successful pilot program” along the same vein as the Titanic had a “successful maiden voyage.”

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  109. Hey Norm says:

    TNick…
    Mass Health Care is a success and the PPACA is working.
    Again…the facts don’t match your ideology.

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  110. Brummagem Joe says:

    @Tsar Nicholas:

    Joe, you’re kidding, right? Um, premium costs in Massachusetts have skyrocketed over the past several years, far outstripping the inflation rate.

    Nicko sweetheart you asked a question…this was it

    How many people simply will refuse to buy health insurance coverage, despite the mandate, and take the risks of not getting caught or in lieu of the premium costs simply will pay the fines?

    I suggested you look at the MA numbers.

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  111. Tsar Nicholas says:

    @Brummagem Joe: Ah, I see. Well, Joe, how pray tell would Massachusetts track the specific number of its denizens who don’t purchase health insurance coverage despite the local mandate? Are you suggesting that Massachusetts is a police state? Where do you suppose I could find those exact numbers? Of course my inquiry in that regard was far more rhetorical than literal and you’re fully aware of that fact.

    Separately I’m heartened to learn that now I’m your sweetheart. Yesterday you referred to me as a “prat.” Interesting choice of words. British slang. Hmm. That might explain a hell of a lot.

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  112. Brummagem Joe says:

    @Tsar Nicholas:

    That’s one of the reasons why everyone was bashing Romney over the head like a red-headed stepchild.

    Yeah Nicko they all hate Romneycare in MA…..for a petroleum trader (or are you a Counsellor today?) you’re curiously oblivious to data….Viz

    Romneycare’s 98% Success Rate Defies Gripes on Obama Law
    By Drew Armstrong and Alex Wayne – Mar 26, 2012 12:00 AM ET LinkedIn Google +1 5 Comments
    Print QUEUEQ
    The success of the Massachusetts health-care system is spurring President Barack Obama to extol the virtues of a law Mitt Romney signed as a governor.

    Romney, running for the Republican presidential nomination, says it shouldn’t be the model for every state.

    Enlarge image
    Massachusetts Health-Care Mandate a 98% Solution Joe Raedle/Getty Images
    Massachusetts then-Governor Mitt Romney signs into law a new health care reform bill during a ceremony at Faneuil Hall on April 12, 2006 in Boston.

    Massachusetts then-Governor Mitt Romney signs into law a new health care reform bill during a ceremony at Faneuil Hall on April 12, 2006 in Boston. Photographer: Joe Raedle/Getty Images
    Play Video
    QMarch 26 (Bloomberg) — The U.S. Supreme Court hears the first round of arguments about the constitutionality of President Barack Obama’s health-care overhaul in the case of Department of Health and Human Services v. Florida. Robert Long of Covington & Burling LLP, was appointed by the court to argue that the Anti-Injunction Act made the case premature. U.S. Solicitor General Donald Verrilli represents the federal government. Gregory Katsas of Jones Day speaks for the National Federation of Independent Business and its members. (Audio courtesy of the U.S. Supreme Court. Source: Bloomberg)
    Play Video
    QMarch 26 (Bloomberg) — Jonathan Gruber, a professor of economics at the Massachusetts Institute of Technology, talks about the Obama administration’s health-care overhaul being considered by the U.S. Supreme Court this week and the Massachusetts law on which it was based. He speaks on Bloomberg Television’s “InBusiness with Margaret Brennan.” (Source: Bloomberg)
    Play Video
    QMarch 26 (Bloomberg) — Mary Mundinger, dean emeritus at Columbia University’s School of Nursing, talks about the Obama administration’s health-care overhaul being considered by the U.S. Supreme Court this week. She speaks with Mark Crumpton on Bloomberg Television’s “Bottom Line.” (Source: Bloomberg)
    Play Video
    QMarch 26 (Bloomberg) — Thomas Miller, resident fellow at the American Enterprise Institute, talks about the U.S. Supreme Court’s consideration of the Obama administration’s health-care overhaul and the potential ompact of the health law on the economy. He speaks with Tom Keene on Bloomberg Television’s “Surveillance Midday.” (Source: Bloomberg)
    Play Video
    QMarch 26 (Bloomberg) — Karen Ignagni, president and chief executive officer of America’s Health Insurance Plans, discusses the Supreme Court’s review of President Barack Obama’s health-care overhaul and the implications for the insurance industry. She speaks on Bloomberg Television’s “InBusiness With Margaret Brennan.” (Source: Bloomberg)
    About 98 percent of state residents are insured under the legislation Romney signed in 2006, a 10 percent rise from the previous three-year average. Government costs haven’t ballooned, officials say, and 63 percent of residents support the law. Yet Romney is promising to repeal the 2010 U.S. law Obama and his fellow Democrats fashioned on the Massachusetts program.

    “It’s a crazy awkward situation,” said Stuart Altman, a professor of national health policy at Brandeis University in Waltham, Massachusetts, by telephone. Romney “can’t take credit. I wish he could; it’s one of his real accomplishments.”

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  113. Brummagem Joe says:

    @Tsar Nicholas:

    Interesting choice of words. British slang. Hmm. That might explain a hell of a lot.

    Yep Nicko, went to college there, married to a brit, and worked there for a few years. Shocking isn’t it.

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  114. Brummagem Joe says:

    @Tsar Nicholas:

    Ah, I see. Well, Joe, how pray tell would Massachusetts track the specific number of its denizens who don’t purchase health insurance coverage despite the local mandate?

    Nicko…I know you’re a king sized plonker (another great Brit word for your type) but maybe you didn’t read this from that Bloomberg report….LOL

    About 98 percent of state residents are insured under the legislation Romney signed in 2006, a 10 percent rise from the previous three-year average.

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  115. Tsar Nicholas says:

    @Brummagem Joe: Ah, good. For a split second I was worried that you were one of those British blokes who obsess over American politics as a result of inferiority complexes.

    Joe, regarding Romneycare you’ve cited an article which in turn cites a number of academics and Mass. government officials along with pointing out that most of Mass. residents support the law. Isn’t that akin to me citing a poll in Texas for their views about government-sponsored and mandated healthcare, or to me citing the Chamber of Commerce in opposition to Obamacare?

    Obviously most people in Mass. support the law. That’s a liberal state. The results would be quite different in Florida, much less in the heartland.

    Also, how does the 98% insured rate in Mass. have anything to do with the cost control issue? Of course nearly all of Mass. residents have health insurance. Duh. They’re under a legal mandate to do so. (Separately it stands to reason that that 2% figure roughly would equate to the number of people who in Mass. categorically refuse to purchase health insurance; extrapolating that rate across the country we’d be looking at millions upon millions of people who despite the Obamacare mandate would not be factoring into premium cost ratings.)

    The key point, Joe, is that Mass. residents pay the highest premium costs in the entire country. Misery loves company.

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  116. Brummagem Joe says:

    @Tsar Nicholas:

    , how does the 98% insured rate in Mass. have anything to do with the cost control issue? Of course nearly all of Mass. residents have health insurance. Duh

    This wouldn’t be you then Nicko?….Duh….perhaps your doppelganger Nicko?

    How many people simply will refuse to buy health insurance coverage, despite the mandate, and take the risks of not getting caught or in lieu of the premium costs simply will pay the fines?

    Ah, I see. Well, Joe, how pray tell would Massachusetts track the specific number of its denizens who don’t purchase health insurance coverage despite the local mandate? Are you suggesting that Massachusetts is a police state? Where do you suppose I could find those exact numbers?

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  117. Brummagem Joe says:

    @Tsar Nicholas:

    categorically refuse to purchase health insurance; extrapolating that rate across the country we’d be looking at millions upon millions of people who despite the Obamacare mandate would not be factoring into premium cost ratings.)

    Yeah Nicko…that would be around 6 million potentially visiting emergency rooms without cover versus the roughly 50 million without health insurance at the moment….that’s what I love about petroleum traders like you Nicko…you’re so numerate

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  118. Tsar Nicholas says:

    @Brummagem Joe: 6 million vs. ~50 million. OK. At what cost in public dollars, however? A trillion? Two trillion? At what cost in net job growth? Millions? Tens of millions? At what cost in public debt service resulting from higher interest rates? At what cost in GDP growth? Joe, public money doesn’t grow on trees and it’s pretty difficult to pay the mortgage or to pay for your kids’ educations with a health insurance card. Think it over.

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  119. Hey Norm says:

    TNick…
    At what cost? Less than the status quo. When the Koch Court overturns the PPACA the deficits and the debt go way up. A conundrum for Republicans…overturn a free-market program and increase the debt. Two thing y’all say you’re against. But actions do speak louder than words.

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  120. Brummagem Joe says:

    @Tsar Nicholas:

    At what cost in public dollars, however? A trillion? Two trillion? At what cost in net job growth? Millions? Tens of millions? At what cost in public debt service resulting from higher interest rates? At what cost in GDP growth? Joe, public money doesn’t grow on trees and it’s pretty difficult to pay the mortgage or to pay for your kids’ educations with a health insurance card. Think it over.

    Blather Nicko…pure blather….the last refuge of those with nothing to say. It’s obviously escaped your notice we’re already spending a lot on healthcare for the 50 million uninsured because they can turn up at emergency rooms and not be denied care…and then guess what….the hospital spreads the cost across everyone elses premiums.

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  121. al-Ameda says:

    @Doug Mataconis: And, the Supreme Court is, as I have said repeatedly, free to ignore, distinguish, modify, or completely overrule any of its previous rulings.”

    I agree, this is, by any measure, an activist conservative movement Supreme Court. I’m guessing that we won’t be hearing too many conservative complaints about an “Judicial Activism” any time soon.

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  122. SHOES THROWER says:

    @MBunge:

    Argue before the Supreme Court.

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