Listening to the oral arguments on the Supreme Court during the last three days is a reminder of why it is, in many respects, the intellectual crown jewel for conservatives, and why it’s vital that those appointed to the high court aren’t simply reliable votes but are capable of making compelling arguments.
To hear Justices Scalia, Alito, Roberts, and even Kennedy slice and dice Solicitor General Donald Verrilli was sheer delight, as they exposed one bad argument and one flawed premise after another. Among other things, they pressed Verrilli on what the limiting principle was under the Commerce Clause. “Can you create commerce in order to regulate it?” Justice Kennedy asked. Justice Alito brought up the market for burial services and asked if the government could mandate funeral insurance (the argument being that because we all die eventually, why shouldn’t we transfer the costs of our deaths to the rest of society). When Justice Scalia asked Verrilli to defend the individual mandate provision of ObamaCare, he wondered why the federal government couldn’t also make citizens buy vegetables. “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,” Scalia asked. Justice Roberts asked if the federal government can make you buy a cell phone.
The solicitor general wasn’t able to offer a principled reason why, if the Patient Protection and Affordable Care Act is ruled as constitutional, the federal government won’t have the power to regulate virtually every area of our lives. Perhaps because there is none. The belief of the founders — that the federal government has limited and enumerated powers — would be dealt a crushing blow. That is why this case is so important and has garnered so much intense interest. The stakes could hardly be higher.
I have no idea what the final vote will be and whether or not the Patient Protection and Affordable Care Act will live or die. But the last three days have provided us with a blessed reprieve from the silliness that often characterizes political campaigns. What we’ve been able to witness is a serious, substantive, and at times even an elevated debate about the Constitution, self-government, and American first principles. Conservatives had their most able advocates articulating their case and their cause. It was an intellectual treat. And it was a rout.