Health care: Will the Supreme Court judge fairly?

Before last week’s Supreme Court hearings, most legal experts assumed the health-care law would be upheld.

This is supposed to be a democracy, said E.J. Dionne in The Washington Post, not a “judicial dictatorship.” Before last week’s Supreme Court hearings on President Obama’s health-care law, most legal experts, even conservative ones, assumed it would be upheld. While the individual mandate requiring all citizens to buy health insurance may be unpopular and politically controversial, it’s supported by previous rulings on what the Constitution’s Commerce Clause permits, and the law was duly passed by both houses of Congress. But then along came last week’s barrage of skeptical questions and “weird hypotheticals”—could the government make citizens eat broccoli?—from the court’s conservative majority. The right-wing judges seemed far more interested in handing a political defeat to Obama than in fairly interpreting the Constitution. If the justices throw out Obamacare, said David Savage in the Los Angeles Times, it will be “the first time since 1936 that the Supreme Court voided a major federal regulatory law.” Notice will have been served to the nation that it’s entered “a new era of judicial activism.”

We told you so, said John Podhoretz in the New York Post. Conservatives have been patiently explaining for the past two years that the law’s individual mandate isn’t constitutional. It’s an unprecedented intrusion on people’s freedom that, as Justice Anthony Kennedy suggested, “changes the relationship of the federal government to the individual in a very fundamental way.” Yet until last week, liberals had their fingers stuck in their ears, singing, “La la la, I’m not listening.” Liberals are trapped in a groupthink bubble, said Jonah Goldberg in They just know the health-care law is constitutional, because all of their liberal friends say so. If the court overturns it, they’ll see it as evidence of rank partisanship and right-wing “judicial activism,” rather than, say, the court fulfilling its most basic function by overturning an unconstitutional law.

Not all of us were surprised last week, said Jonathan Chait in Most liberals, like most Americans, have known since Bush v. Gore that the court’s conservative bloc puts “its own partisan and ideological leanings” above a strict interpretation of the law. Yet even some conservative legal experts were taken aback at the political tone of last week’s hearings, said Dahlia Lithwick in Former Reagan Solicitor General Charles Fried said he was shocked to hear the conservative justices trotting out “the most tendentious of the Tea Party–type arguments” against the law, rather than addressing its legal merits. By the third day of oral arguments, when several justices mused about throwing poor people off the Medicaid rolls, “the line between a Rush Limbaugh segment and oral argument at the highest court in the land had all but evaporated.”

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We owe the court more respect than that, said Ruth Marcus in I personally believe the health-care bill is constitutional, but it isn’t a “slam dunk.” What I heard last week at the Supreme Court was a group of fine legal minds “wrestling with a legitimate, even difficult, constitutional question.” Whatever decision they reach, we owe it to the court, and to ourselves, to assume they reached it in good faith. Let’s hope they decide by a clear majority either way, said Akhil Amar in, rather than a 5–4, party-line split. Some agreement among liberal and conservative justices would give their ruling credibility and douse the partisan fires. That is “what America now needs, and needs desperately, from the highest court in our land.”

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