Ever since the Supreme Court listened to oral arguments about the constitutionality of Obamacare, the administration and its supporters have been doing everything in their power to influence the justices to leave the president’s signature legislative achievement in place. In particular, Chief Justice Roberts and other conservatives have received not-so-subtle hints that their legacies will be judged by whether or not they allow the law to stand. I doubt that Roberts cares very much about the opinion of the president or the New York Times, but there is a school of thought that wonders about whether Justice Kennedy — the quintessential swing voter on the court — might be influenced in that fashion. However, there is the old axiom that the Supreme Court follows the election returns.
Historically, the court has, after its own fashion, validated that observation, often granting its judicial seal of approval to certain trends only after they have seen the advocates of constitutional positions triumph at the polls. The problem with this is the people can change their minds every two or four years, but once the court settles on an opinion it can be set in stone for a generation or more. Thus, it is with no small interest that we look at polls about the constitutionality of ObamaCare, a decision on which will be handed down within weeks. Rasmussen’s new poll shows that a solid 55-39 percent majority favors its repeal. Virtually every poll taken on the issue in the last two years has gotten more or less the same result. This means that if the court does strike the law down, it will not only be restoring a sense of limits to the power of the government to use the Commerce Clause to justify any conceivable expansion of federal power, it will also be following the will of the people.
After the disastrous performance of the solicitor general in defense of the law during the three fateful days of arguments, there has been a concerted effort by the left to overcome the impression that the personal mandate is doomed by appeals to the court’s history. But while it might have been argued that a court ruling that overturned the legislature’s decision would have been an overreach, doing so after that legislation had been the key issue in a midterm massacre of those who voted for it is certainly less so. As this Rasmussen poll, and all the others that got the same results illustrates, should the court strike down ObamaCare, there will be no national backlash against Roberts and his colleagues except in the editorial columns of liberal newspapers.
The justices have displayed a contempt for power-grab cuteness yoked to Constitutional incoherence as Al Gore discovered, and that was a potentially explosively unpopular and divisive decision. But the majority of the Court decided that time had come to say "enough" and put its foot down.
The New York Times has had a strong effect on the behavior and votes of Supreme Court justices. The classic example is David Souter. Justice Souter reveled in the approval of the New York Times and Linda Greenhouse. For voting the way the Times editorial writers advised him to do, Mr. Souter was rewarded with an NYTimes Magazine cover extolling his "evolution". He got the glossiest cover photo that any person of normal ego could ask for. The approval of the NYTimes also meant that Justice Souter could attend moot court arguments at elite law schools and be feted at seminars at the elite law schools. In contrast, guess how many times Justice Thomas has been invited to speak at elite law schools or to judge moot court competitions at these elite law schools? The answer, of course, is zero. n Logically, one wonders at why a Supreme Court justice, with lifetime tenure, would care what Andrew Rosenthal or Linda Greenhouse thinks about him or her. Human nature, however, works in strange ways. Getting the praise of the NYTimes is an intoxicant to many judges. For generations, judges on the US Court of Appeals for the Second Circuit have shown an almost slavish devotion to the New York Times. The many decisions in favor of Gitmo defendants from the Second Circuit are surely, at least on a subconscious level, the result of judges wishing to win the approval of Andy Rosenthal, or even better, Linda Greenhouse.
The Founding Fathers intended for the Judiciary, like ALL branches of Govt, to FULLY realize they were outside ALL SHREDS of their Authorization when they wander away from the Known Will of We the People, regardless of how popular the election of individual personalities. n nLeave no authority existing not responsible to the people. – Thomas Jefferson n nThomas Jefferson: An elective despotism was not the government we fought for, but one which should not only be founded on true free principles, but in which the powers of government should be so divided and balanced among general bodies of magistracy, as that no one could transcend their legal limits without being effectually checked and restrained by the others. n
There are thousands of health insurers and most of them write policies in most states. If that isn’t interstate commerce, I don’t know what is.
And the author cherrypicks the Rasmussen poll, which has a known Republican bias. In fact, polls show overwhelming support for most individual aspects of Obamacare, with the significant exception of the individual mandate for insurance coverage. Except that without the mandate, the wildly popular guaranteed issue requirement fails. Looks like Americans again want Something for Nothing.