It bothers me that the justices seeming to favor the Medical legislation are Democrats, while those opposing are Republicans. This should not be a political decision. Yet the discussion so far indicates that the final decision will be based on politics rather than interpretation of the legislation & the constitution. There is only one short phrase in the constitution. Something like: "The Federal government has the right to regulate interstate commerce." As far as I know the original intent was primarily to prevent states from enacting tariffs against each other and to allow products produced in one state to be sold in another. It would obviously be a mess if New York wanted to favor products made in New York by imposing tariffs on the same products made in New Jersey or worse yet, not allowing the NJ products to be transported across the state line. That phrase has been used to justify incredible regulatory powers. It seems to me that for circa 100 years or more, the supreme court (& lesser coursts) make a decision based on their own subjective POV & then contrive some interpretation of law & the constituition to justify the what they decided before actually analyzing the issues. BTW: While I am in favor of women making their own decisions about abortion, I consider the “Right of privacy” argument used as ridiculous. Actually, it seems like a weird contrived argument by those in favor of the Roe/Wade decision.
I have limited time right now, but it's far more complicated than you make it seem in this post. Justices do not always vote their politics, they do by and large have complicated theories of the law...but those theories do tend to match their politics in many cases. As for the commerce clause, if the only object was to prevent the States from imposing tariffs, then the clause would have been useless from the get go, as Article I, Section 10 already forbade the states from laying tariffs on imports or exports without Congressional consent. Its aim was to allow congress to regulate commercial dealings that cross state lines, combine that with the necessary and proper clause and that does cover a lot of ground. That fact was noted even by Chief Justice John Marshall (who was both one of the founders and one of the greatest lawyers in American legal history), in the early 19th century, and he wrote the seminal case of Gibbons v Ogden. There are legitimate debates on legal theory, but even under the originalist (which itself contains many different schools of thought) views, the commerce clause is a broad grant of power, especially so now as the U.S. economy is far less local, and far more national, than it was 223 years ago. There was a move to limit the commerce clause in the late 19th to early-20th centuries, and that is typically seen as an early kind of conservative judicial activism, based on the policy preferences of the justices involved...the so-called "Lochner era". The truth is that most Supreme Court decisions are so uncontroversial that you never hear about them. Only a handful are contentious (and because they are, those you do hear about). The section bias makes people think the Court is far more politically charged than it really is. The controversial cases come maybe one in every two years, on average, and the court hears or reviews 120-150 cases per year in recent years (they used to cover more, like 150-200 per year, but have scaled back in the modern era).
Judicial Activism in the Roberts Era I think the question arises anew because the conduct of the Supreme Court's conservative faction raised eyebrows this week. Like Scalia's bit about the Cornhusker Kickback. "Judicial activism" is in the news again. No, not the classic meaning of the term, but the political one. After years of enduring conservative complaints about judicial activism—apparently constitutional right + constitutional right = no right at all—the Roberts Court is on verging toward embodying the conservative complaint about judicial activism. It's a curious spectacle. E. J. Dionne, Jr. took up the judicial activism consideration: Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee. Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress "wouldn't have been able to put together, cobble together, the votes to get it through." Tell me again, was this a courtroom or a lobbyist's office? It fell to the court's liberals—the so-called "judicial activists," remember?—to remind their conservative brethren that legislative power is supposed to rest in our government's elected branches. And, of course, as Dionne and others have pointed out recently, "the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation's Stuart Butler". I think much of the back-and-forth we heard this week was simply astrology and tea leaves. By making it dramatic, the press played for audience attention. Whether or not the stark analyses of NBC's Pete Williams, or CNN's Jeffrey Toobin, actually have any significance in reality remains to be seen, but it really did seem like the media was aiming for a soap opera. Still, though, the broader question of political decisions from the Supreme Court bubbles up because, as Steve Benen put it, "Conservative jurists loathed the very idea of judicial activism, right up until they were given an opportunity to engage in some of their own". The Roberts Court has been a strange one, carving out excuses for school districts illegally searching children's genitals, but loathing public institutions that follow the Civil Rights Act while refusing to actually overturn the CRA, or affirming that institutions are individuals entitled to all manner of free expression and privacy about how they tamper with public policy. With Jack Balkin and David Cole asserting the constitutional validity and safety of the individual mandate, there are some good reasons why we might wonder if maybe a decision against the ACA will be more political than judicial. ____________________ Notes: Dionne, E. J. "Judicial activists in the Supreme Court". The Washington Post. March 28, 2012. WashingtonPost.com. March 29, 2012. http://www.washingtonpost.com/opinions/activist-judges-on-trial/2012/03/28/gIQAKdE2gS_story.html Benen, Steve. "Putting the 'judicial activism' talking point to the test". The Maddow Blog. March 29, 2012. MaddowBlog.MSNBC.MSN.com. March 29, 2012. http://maddowblog.msnbc.msn.com/_ne...e-judicial-activism-talking-point-to-the-test Balkin, Jack. "The Limiting Principle". Balkinization. March 28, 2012. Balkin.Blogspot.com. March 29, 2012. http://balkin.blogspot.com/2012/03/limiting-principle.html Cole, David. "Obamacare: Not Dead Yet". The Nation. March 28, 2012. TheNation.com. March 29, 2012. http://www.thenation.com/article/167089/obamacare-not-dead-yet
Whereas, in its own editorial, the Washington Post editorial board wrote: They are not exactly a conservative bastion. I wondered if they were targeting Dionne (whose op-ed was published the day before theirs) when I read their editorial, since he seems to be making precisely the sort of "intellectually lazy" argument they're writing about. http://www.washingtonpost.com/opini...ivics-lesson/2012/03/29/gIQASfdZjS_story.html The truth is that there are very good, very reasonable legal arguments on both sides of the issue, and it absolutely raises a novel question about the reach and scope of the Commerce Clause as augmented by the Necessary and Proper Clause. Worse for the Administration's side, Solicitor General Donald Verrilli is believed by many (even by many liberals) to have not put in a stellar performance over those three days, whereas Paul Clement is an outstanding attorney who had an above average performance. (Tom Goldstein, co-founder of SCOTUSblog and no slouch himself as a lawyer tweeted, "Paul Clement gave the best argument I've ever heard." Just because you lose doesn't mean the other side cheated or that the refs ignored the rules. We'll see how the Court rules in June, but all the talk by people like Dionne does seem to be what his bosses at the Washington Post suggest it is. It is not reasonable to "pre-declare" that any vote against the mandate is partisan given the strength of the legal arguments and the legal talent on both sides. When their opinion comes out, if they strike down the mandate on nonsensical grounds, then there might be a point to make, but for now asserting partisanship is merely foolish. I was glad to see WaPo's editorial board distance themselves from that.
Except one of the key issues that they are likely to have to decide on, if they strike down the IM, is the severability of the individual Mandate provision. One lower Federal court has already ruled that if you strike that part the whole law falls, so it is indeed proper for the Justices to explore this area and their doing so is not, at this point of the discovery in anyway the same as excersizing Legislative power.
