Commentary Magazine


Topic: Supreme Court

On Turning Political Opponents into Moral Monsters

I want to second what Jonathan has written about the Supreme Court’s two decisions related to same-sex marriage.

The worst possible outcome was that the high court would, in an exercise of raw judicial power, invent a constitutional right to gay marriage, forcing all 50 states to abide by it. We averted that outcome, which would have split the nation in a manner similar to what Roe v. Wade has done for two generations. It is in the nature of conservatism to be grateful when things that can go wrong don’t go wrong; and in this instance, we avoided a decision that would have had ruinous effects.

I also want to focus on one section of Justice Scalia’s dissent, in which he wrote this:

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I want to second what Jonathan has written about the Supreme Court’s two decisions related to same-sex marriage.

The worst possible outcome was that the high court would, in an exercise of raw judicial power, invent a constitutional right to gay marriage, forcing all 50 states to abide by it. We averted that outcome, which would have split the nation in a manner similar to what Roe v. Wade has done for two generations. It is in the nature of conservatism to be grateful when things that can go wrong don’t go wrong; and in this instance, we avoided a decision that would have had ruinous effects.

I also want to focus on one section of Justice Scalia’s dissent, in which he wrote this:

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do.

It’s worth pausing over what Justice Scalia is saying here, which is that we’re all susceptible to weaving narratives that are black and white, that truth is often more complicated than that, and that it’s hard to admit that one’s political opponents are not monsters, especially in a struggle like this one.

I’ve written in the past about this phenomenon. We often deny to those with whom we disagree any benefit of the doubt, since we assume they see facts, events and justice just as we do. This makes their differing conclusions from us very nearly impossible to comprehend–and in turn makes it easy to characterize one’s opponents as pernicious. It would help our political culture if we understood that every one of us has an imperfect angle on reality; that our perception of justice is always at least a bit distorted; and that all of us see through a glass darkly and know things only in part. 

To be sure, this is not an argument against spirited and intense disagreements (I’ve been involved in a few of those myself over the years). Nor do I mean to imply that some people aren’t closer to perceiving truth and wisdom than others. It’s simply to say that Justice Scalia is correct; in politics, in judicial and theological disputes, and in life generally, it’s sometimes hard to admit that our political opponents, while they may be wrong, are not monsters. They are, in fact, fellow citizens. Which is probably worth remembering on days like this and in the aftermath of decisions like this.

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A Ruling Without Reason

This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

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This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

“The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism,” the majority writes–and not because the state has exclusive sovereignty over the regulation of marital relations. Rather, according to the majority, the power of the state is central because in this case New York State passed a statute of which the majority approved. The recognition by New York State of same-sex marriage “enhanced the recognition, dignity, and protection of the class in their own community.” According to the majority, the federal government snatched away that “recognition, dignity, and protection” in a fit of homophobic animus with the Defense of Marriage Act. “What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

This is starting to look like an equal protection argument until the majority again veers off course. It does not engage in a rigorous equal protection analysis based on an established standard of constitutional scrutiny–the rational basis test, which seeks some legitimate government interest underpinning a statute, or the strict scrutiny test, which seeks some compelling government interest supporting a statute, or even the heightened scrutiny test, which is an intermediate level of review. Instead, the Court declares DOMA a violation of the Fifth Amendment’s equal protection component demanding “careful consideration.”

Careful consideration of what?

The Court does not say. To wit, careful consideration is a standard of review conferred upon menus, brochures, and resumes, not constitutional claims for equal protection of the laws. So while supporters of same-sex marriage celebrate the outcome in United States v. Windsor, the victory may well prove pyrrhic. The degree of constitutional protection to which homosexuals are entitled is no more clear today than it was on the day that DOMA was enacted in 1996. What is more, proponents of federalism have cause for concern. By refusing to hold categorically that the states are sovereign over the regulation of familial relations within their boundaries, the Court left open the possibility of future federal legislation in that field. The Court’s decision in Windsor has neither vindicated gay rights nor championed federalism. Rather, with what Justice Scalia scathingly characterizes as a “disappearing trail of . . . legalistic argle-bargle,” the majority has presented the nation with a policy choice clothed in tatters of doctrine.

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On DOMA, SCOTUS Follows the Culture

Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

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Today’s gay marriage decisions handed down by the United States Supreme Court were decided on the law as interpreted by the majority. But there’s little question that the ruling striking down the Defense of Marriage Act is rooted in a fundamental shift in American culture that took place in the last generation. The sweeping language used by Justice Anthony Kennedy in his DOMA opinion spoke of the need to extend equal protection to gay spouses in states that permitted such marriages. In doing so, he not only struck down the federal act that did not recognize them but characterized it in such a way as to consign it to the dustbin of history along with other restrictions, whether about race or religion, that are now regarded as indefensible.

Gays and their supporters are rightly celebrating this as a historic turning point in American history. But it must be understood that this ruling would have been unthinkable 20 years ago when even a liberal President Bill Clinton eagerly signed DOMA after Congress had passed it. How did this sea change come about? Liberals may consider it a natural evolution of thought to more progressive opinion (since as we saw with President Obama and gay marriage, reversals on such issues that end with an endorsement of the more liberal position are regarded as evolution rather than a flip-flop). But it could never have happened outside of the context of American popular culture that has normalized gays and gay marriage in films and TV to the point that they are now regarded as unexceptionable. As my colleague John Podhoretz noted on Twitter this morning after the ruling, the credit for the decision on DOMA belongs as much to the producers of the Will and Grace television show as it does to any legal scholar.

While Justice Kennedy derided the willingness of Congress to step into what most Americans consider a point about morality and to, in effect, discriminate against gay couples, the question of whether such discrimination is legal or not has always tended to be based on popular opinion as much as law. This is a key point because as Justice Antonin Scalia pointed out in his dissent in the 5-4 vote on DOMA, Congress has always considered itself to have the right to legislate on morality. But that is only true so long as there is a consensus about what is moral and what is not. In the 1990s, the long held consensus that the traditional definition of marriage is the only one the government should recognize still held. If that is no longer true, and it is obvious that this is the case, then it is inevitable that the law will follow the culture.

For example, even today as much of America celebrates the newly enshrined concept of marriage equality, few seem to have any problem prohibiting two or three women from marrying the same man and in treating such “Big Love” marriages as being beyond the pale of the law’s protection. Under the logic of the DOMA decision, that ought not to be true. But even to ask the advocates of gay marriage if their victory should extend to polygamous spouses would probably be viewed as a provocation rather than a reasonable question. Perhaps that will no longer be true in a generation, but unless the entertainment industry is prepared to start including more “plural marriage” characters in its situation comedies, I wouldn’t bet on it.

The defenders of traditional marriage can console themselves that the majority in the DOMA case did not overreach in the manner of the authors of the Roe v. Wade decision and have not attempted to mandate gay marriage throughout the country. They have wisely left the decision about whether to legalize such unions to the states. Doing so reaffirms the basic concepts of federalism and allows those states that refuse to accept gay marriage to go on doing so. That may change if Hillary Clinton is elected president in 2016 and is able to replace some of the court’s conservatives with liberals. At that point the court may strike down all state laws or constitutional amendments that do not conform to this standard, which is something they refused to do in the California Proposition 8 case today where they merely said the plaintiffs had no standing to defend the statute.

But the point here is that gay marriage advocates won the legal war because they first won the culture war. Those conservatives who hope to avoid the same outcome on other issues would do well to remember that. 

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Money, Speech and Morgan Freeman

Politico reported this morning that Morgan Freeman donated $1 million to the pro-Obama super PAC Priorities USA last month. The organization has reportedly been struggling to drum up donors, which isn’t surprising as Democrats have spent the past two years demonizing super PACs. Clearly, they hope Freeman’s donation will signal to wealthy liberals that it’s okay to support these groups.

But note Freeman’s statement out this morning:

“Pres. Obama has done a remarkable job in historically difficult circumstances. … I am proud to lend my voice … to those who defend him. Priorities USA Action is doing a great job of protecting the values I believe in. I am happy to help them and I hope others will join me.”

He wasn’t defending his donation as a necessary evil. Instead, he said he was “proud to lend [his] voice.” That’s an interesting choice in wording, considering Democrats have been mocking the idea that political spending is protected speech for the last two years.

But Freeman is right, and the Supreme Court has affirmed it. Political spending is a form of free expression. As Justice Antonin Scalia explained eloquently to CNN’s Piers Morgan last night, “You can’t separate speech from the money that facilitates the speech.”

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Politico reported this morning that Morgan Freeman donated $1 million to the pro-Obama super PAC Priorities USA last month. The organization has reportedly been struggling to drum up donors, which isn’t surprising as Democrats have spent the past two years demonizing super PACs. Clearly, they hope Freeman’s donation will signal to wealthy liberals that it’s okay to support these groups.

But note Freeman’s statement out this morning:

“Pres. Obama has done a remarkable job in historically difficult circumstances. … I am proud to lend my voice … to those who defend him. Priorities USA Action is doing a great job of protecting the values I believe in. I am happy to help them and I hope others will join me.”

He wasn’t defending his donation as a necessary evil. Instead, he said he was “proud to lend [his] voice.” That’s an interesting choice in wording, considering Democrats have been mocking the idea that political spending is protected speech for the last two years.

But Freeman is right, and the Supreme Court has affirmed it. Political spending is a form of free expression. As Justice Antonin Scalia explained eloquently to CNN’s Piers Morgan last night, “You can’t separate speech from the money that facilitates the speech.”

Scalia: You can’t separate speech from the money that facilitates the speech.

Morgan: Can’t you?

Scalia: It’s utterly impossible. Could you tell newspaper publishers you can only spend so much money in the publication of your newspaper?

Exactly. If you limit the amount of money that can be spent on speech, you are consequently limiting the speech. It’s true that some people have more to spend on this than others. But there are all kinds of inequalities when it comes to speech. Some people run newspapers. Some people have radio shows. Some people have prominent jobs that provide them with platforms to reach large audiences.

And then there are those who choose to spend their own money to express their voices on politics. Freeman apparently gets it. When will Senate Democrats figure it out?

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Chief Justice’s Approval Rating Dives 40 Points With Republicans

Obviously Chief Justice John Roberts was going to take a hit in the polls after his ObamaCare decision — but a 40-point drop among Republicans? There’s no way he ever bounces back from this, right?

A Gallup poll released Monday found that Roberts’s favorables dropped 11 percentage points among all Americans since the last survey in September 2005. The most recent polling showed Roberts with 39 percent of national adults having a favorable opinion of him. In 2005, the same poll found that 50 percent of adults had a favorable view of the chief justice.

Among Republicans, Roberts’s drop has been more drastic. Sixty-seven percent of Republicans had a favorable view of Roberts in 2005, a figure which plummets 40 points to 27 percent in the 2012 survey. Four percent had an unfavorable view of the chief justice in 2005, jumping to 44 percent in the new poll.

Roberts’s betrayal wouldn’t have been as gut-wrenching if his decision had been based on principled arguments, even if they were wrong. The elevation of politics over principle made it much worse. He wasn’t just mistaken; he sold out his own side for political expediency. Americans have come to expect that from politicians, but not from the Supreme Court.

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Obviously Chief Justice John Roberts was going to take a hit in the polls after his ObamaCare decision — but a 40-point drop among Republicans? There’s no way he ever bounces back from this, right?

A Gallup poll released Monday found that Roberts’s favorables dropped 11 percentage points among all Americans since the last survey in September 2005. The most recent polling showed Roberts with 39 percent of national adults having a favorable opinion of him. In 2005, the same poll found that 50 percent of adults had a favorable view of the chief justice.

Among Republicans, Roberts’s drop has been more drastic. Sixty-seven percent of Republicans had a favorable view of Roberts in 2005, a figure which plummets 40 points to 27 percent in the 2012 survey. Four percent had an unfavorable view of the chief justice in 2005, jumping to 44 percent in the new poll.

Roberts’s betrayal wouldn’t have been as gut-wrenching if his decision had been based on principled arguments, even if they were wrong. The elevation of politics over principle made it much worse. He wasn’t just mistaken; he sold out his own side for political expediency. Americans have come to expect that from politicians, but not from the Supreme Court.

Republicans aren’t going to forgive Roberts anytime soon. But what about the other conservative justices on the Supreme Court who were reportedly furious with him?

Time heals all wounds, as the saying goes, and according to a couple of justices, the rancor at the U.S. Supreme Court in the wake of the Affordable Care Act decision probably won’t survive the summer.

“Everyone here does have the sense the institution is so much more important than the nine who are here at any point in time and we should not do anything to leave it in worse shape than it was in when we came on board,” one justice told the National Law Journal. “My guess is we’ll come back in the fall and have the opening conference and it will be almost the same. I would be very surprised if it’s otherwise.”

Another justice echoed those sentiments, for the most part. “The term always starts friendly and relaxed, and gets tense at the end when the most difficult cases pile up. It’s still collegial, but there is an overlay of frustration,” the NLJ reported a second justice as saying.

This seems much more intense than the usual “overlay of frustration.” Have there ever been this many leaks after a Supreme Court decision? That alone tells you the extent of the friction. Roberts didn’t just have a disagreement with his conservative colleagues; he basically threw them under the bus on what may be the defining case of his tenure.

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A COMMENTARY Guide to ObamaCare

While the country waits for the Supreme Court’s decision on ObamaCare, we invite readers to enjoy Tevi Troy’s recent series of COMMENTARY articles on American healthcare and its political and legal journey. Troy, a former deputy secretary of Health and Human Services, begins the incisive series with April 2010’s  “Health Care: A Two-Decade Blunder,” explaining how the issue first became so highly politicized, and ends with May 2012’s “Three Days that Shook ObamaCare,” detailing the pivotal Court arguments that took place in March. The articles make for a comprehensive resource on this pivotal national issue and, moreover, they’re all great reads.  See links below.

 

While the country waits for the Supreme Court’s decision on ObamaCare, we invite readers to enjoy Tevi Troy’s recent series of COMMENTARY articles on American healthcare and its political and legal journey. Troy, a former deputy secretary of Health and Human Services, begins the incisive series with April 2010’s  “Health Care: A Two-Decade Blunder,” explaining how the issue first became so highly politicized, and ends with May 2012’s “Three Days that Shook ObamaCare,” detailing the pivotal Court arguments that took place in March. The articles make for a comprehensive resource on this pivotal national issue and, moreover, they’re all great reads.  See links below.

 

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SCOTUS Hands Victory to Supporters of Citizens United

The biggest news out of the Supreme Court today is its decision on the Arizona immigration law, but it also handed a victory to supporters of Citizens United by knocking down a Montana law banning in-state corporate political spending. WSJ reports:

The U.S. Supreme Court has issued a summary reversal of the Montana Supreme Court’s decision to uphold a state law that prohibited corporate spending in state elections. The U.S. Court said the question in this case was whether the Citizens United decision, which established that corporate spending in elections is permitted as a matter of free speech, applied to the Montana state law. “There can be no serious doubt that it does,” the Court wrote.

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The biggest news out of the Supreme Court today is its decision on the Arizona immigration law, but it also handed a victory to supporters of Citizens United by knocking down a Montana law banning in-state corporate political spending. WSJ reports:

The U.S. Supreme Court has issued a summary reversal of the Montana Supreme Court’s decision to uphold a state law that prohibited corporate spending in state elections. The U.S. Court said the question in this case was whether the Citizens United decision, which established that corporate spending in elections is permitted as a matter of free speech, applied to the Montana state law. “There can be no serious doubt that it does,” the Court wrote.

The 5-4 decision — which broke across the same lines as the Citizens United decision — was a reaffirmation that free speech rights of corporations extend to state and local elections. Senate Minority Leader Mitch McConnell, a long-time champion of this issue, released a statement praising the verdict:

“In another important victory for freedom of speech, the Supreme Court has reversed the Montana Supreme Court, upholding First Amendment free speech rights that were set out in Citizens United. As I pointed out in an amicus brief that I filed in the Montana case, a review of Federal Election Commission records of independent spending supporting the eight Republican presidential candidates earlier this year showed only minimal corporate involvement in the 2012 election cycle. Not one Fortune 100 company contributed a cent to any of the eight Republican Super PACs, as of the end of March, according to FEC records. The records also showed that of the $96 million contributed to the eight Super PACs through March 31, an overwhelming 86.32 percent of that money came from individuals while only 13.68 percent came from corporations and 0.81 percent from public companies. Clearly, the much predicted corporate tsunami that critics of Citizens United warned about simply did not occur.”

The decision is likely to prompt more cries from the left that the Supreme Court is far-right and illegitimate. While it’s a setback for the anti-Citizens United crowd, the decision wasn’t unexpected, and it’s not going to stop the liberal clamor to repeal protections on corporate speech.

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Killing Obamacare Could Help the President

Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.

For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.

On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.

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Despite an economy in real trouble, President Obama spent much of his first two years in office getting his health care plan through Congress. Passed with no Republican votes whatever, the plan was deeply unpopular with the public and has only gotten more so. Now the country awaits a Supreme Court decision on its constitutionality with a level of interest unseen since Brown v. Board of Education 58 years ago.

For all the speculation on whether the law will stand or fall, there has been almost as much on what the political impact of the decision will be in this presidential election year. If it is upheld, it would be a vindication for the president, who badly needs a political boost right now. But it is also likely to galvanize still further the opposition, which is already highly motivated.

On the other hand, if all of the law or the individual mandate provision is struck down (which would mean in all likelihood that the whole law is infeasible), the president will be seen as having wasted his own political capital and the country’s time when there was much economic distress and fiscal problems that should have been dealt with instead. He will be perceived as having been politically incompetent.

Yet, the death of Obamacare would lift a vast amount of uncertainty from the marketplace, and uncertainty, even more than bad news, depresses markets. As Betsy McCaughey pointed out recently in IBD, the requirement that employers with 50 or more employees provide a specified level of health insurance beginning in 2014 or pay a $2000 fine per employee will greatly increase labor costs, by an average of $1.79 an hour for each employee. That would be the biggest government-mandated labor cost hike in American history. This has made employers reluctant to hire, as their future labor costs are to a significant degree currently unknown. And those firms with nearly 50 employees have been very reluctant indeed to cross that threshold, for fear of becoming subject to the mandate.

With that uncertainty suddenly removed, there could be an immediate marked increase in hiring, leading to a fall in the unemployment rate. That would be a Godsend to the Obama campaign.

With the chattering classes collectively holding their breaths, the decision could come Monday. (Actually, I’m betting against Monday. At the penultimate sitting of the Court in June, the chief justice usually announces that the next sitting will be its last before the Court recesses for the summer. Chief Justice Roberts did not make such an announcement last Thursday, and so Monday probably won’t be the last decision day this term. The biggest decision of the year—in this case, the biggest decision in decades—is almost always announced on the last day of the term.)

But if it does come Monday and you want to get the news first, log onto scotusblog.com at ten o’clock tomorrow morning. They’ll be liveblogging the decisions being handed down at that time. The health care opinion is likely to be written by the most senior justice in the majority and so will be among the last to be announced, as decisions are read beginning with those written by the most junior justice. If Chief Justice Roberts is in the majority—which most likely means all or part of the law will be struck down—it will be announced last.

For what it’s worth, the Intrade odds as of Sunday morning are at 78.2 percent that the individual mandate will be thrown out, better than 3-to-1 and up sharply in the last few weeks.

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Reading Tea Leaves on ObamaCare

We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

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We’ll probably have to wait at least another week to hear the Supreme Court’s ruling on ObamaCare and the individual mandate, but there’s always more room for speculation. At Forbes, the Manhattan Institute’s Avik Roy has a Talmudic reading on some recent comments from Justice Ginsburg and Justice Scalia. On Justice Ginsburg, who actually addressed the case last week at a liberal legal conference, Roy writes:

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

That’s pretty interesting, if Roy’s third-hand sources are correct. If the Court hasn’t decided how to rule on this question, we could be waiting longer than just another week or two. The consensus among journalists and others closely following this seems to be that the ruling will come next Monday, or possibly later next week if the Court needs additional time. But there’s no deadline, and the Court can pretty much do what it wants when it comes to timing.

Roy also notes an interesting development from Justice Scalia, who released a book this week clarifying his position on a decision related to the Commerce Clause:

Wickard, [Scalia] writes, “expanded the Commerce Clause beyond all reason” by opining that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.” …

The bottom line is that if Scalia thinks Wickard was wrongly decided, he’s almost certain to vote to overturn the mandate. This isn’t a surprise based on his commentary at oral argument, but it may shed light into the thinking of Justices Alito and Roberts, who are thought to share Scalia’s precedent-oriented approach to dealing with the Commerce Clause.

After Scalia’s tough questioning during the health care arguments, it seemed highly likely that he would side against the individual mandate. But Obama administration attorneys were reportedly speculating prior to that that Scalia could be a swing vote to uphold the mandate based on his previous opinions related to the Commerce Clause. Scalia may be attempting to reconcile this in his latest book.

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McConnell Vows to Defend Citizens United

Senate Minority Leader Mitch McConnell signaled that Republicans will fight attacks on Citizens United and other assaults on political expression during a speech at the American Enterprise Institute earlier today.

“Campaign contributions are speech,” said McConnell. “If we lose the right to speak, we’ve lost the battle before it starts.”

The left has decried the Citizens United decision since the beginning, but the recent Wisconsin recall election reenergized efforts to fight it. Despite the fact that Citizens United had little impact on the election spending in Wisconsin, progressives blamed it for their loss and seem determined to make it a top issue in the presidential election.

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Senate Minority Leader Mitch McConnell signaled that Republicans will fight attacks on Citizens United and other assaults on political expression during a speech at the American Enterprise Institute earlier today.

“Campaign contributions are speech,” said McConnell. “If we lose the right to speak, we’ve lost the battle before it starts.”

The left has decried the Citizens United decision since the beginning, but the recent Wisconsin recall election reenergized efforts to fight it. Despite the fact that Citizens United had little impact on the election spending in Wisconsin, progressives blamed it for their loss and seem determined to make it a top issue in the presidential election.

The latest example is David Axelrod, who promised earlier this week that if Obama wins a second term, he will pursue any option — including a constitutional amendment — to restrict these rights:

“When we win, we will use whatever tools out there, including a constitutional amendment, to turn this back. I understand the free speech argument, but when the Koch brothers can spend $400 million, more than the McCain campaign and the Republican Party spent last time, that’s very concerning.”

At AEI, McConnell blasted Axelrod and the Obama administration for the proposal.

“Amending the First Amendment for the first time in history is an act of radicalism,” said McConnell.

There are other indications that the issue of political money will be back at the top of the news this summer. The Supreme Court reportedly met earlier this week to consider a Montana case that challenges some aspects of the Citizens United decision and a subsequent Appellate Court ruling on unlimited political contributions. The Los Angeles Times reports that the appeal isn’t expected to be denied, and the Supreme Court may either decide to hear the case or write a summary opinion defending the Citizens United ruling.

McConnell said as the election nears, some Republicans may be tempted “to take the issue off the table or make concessions.”

“My advice is to resist the temptation,” he said.

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Who Loses if ObamaCare is Overturned?

A popular argument lately has been if the Supreme Court overturns ObamaCare, it will actually be disastrous for Republicans by taking away a major motivating force that would have driven voters to the polls in November. That’s hard to believe. Voters routinely cite jobs and the economy as the top issues that influence their votes, with health care trailing well behind. Those who do list health care as a key voting priority are actually more likely to support Obama. Not to mention, anyone who was planning to vote based on their opposition to ObamaCare would likely be attracted to the GOP’s broader economic vision as well.

Democrats have by far the most to lose if the law is struck down, and their response will be hugely important. In the WSJ today, Karl Rove outlines the best case Obama can make if his signature legislative achievement is overturned:

If the court moves to invalidate part or all of the Affordable Care Act, what matters most politically is Mr. Obama’s response.

The president could pivot to the center and regain some of the high ground he occupied in his 2008 campaign. He could say that while he disagreed with the court’s decision, the justices had the responsibility under our system to decide whether the law was constitutional. Everyone needs to respect and accept the verdict.

He could then add that a big problem remains: Tens of millions of our fellow citizens lack affordable health insurance. Now it is the responsibility of Republicans and Democrats, liberals and conservatives to come together and provide access to coverage. And the president could offer proposals to do that.

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A popular argument lately has been if the Supreme Court overturns ObamaCare, it will actually be disastrous for Republicans by taking away a major motivating force that would have driven voters to the polls in November. That’s hard to believe. Voters routinely cite jobs and the economy as the top issues that influence their votes, with health care trailing well behind. Those who do list health care as a key voting priority are actually more likely to support Obama. Not to mention, anyone who was planning to vote based on their opposition to ObamaCare would likely be attracted to the GOP’s broader economic vision as well.

Democrats have by far the most to lose if the law is struck down, and their response will be hugely important. In the WSJ today, Karl Rove outlines the best case Obama can make if his signature legislative achievement is overturned:

If the court moves to invalidate part or all of the Affordable Care Act, what matters most politically is Mr. Obama’s response.

The president could pivot to the center and regain some of the high ground he occupied in his 2008 campaign. He could say that while he disagreed with the court’s decision, the justices had the responsibility under our system to decide whether the law was constitutional. Everyone needs to respect and accept the verdict.

He could then add that a big problem remains: Tens of millions of our fellow citizens lack affordable health insurance. Now it is the responsibility of Republicans and Democrats, liberals and conservatives to come together and provide access to coverage. And the president could offer proposals to do that.

The Obama campaign would be smart to take Rove’s advice and shift to the center if the law is overturned. But judging from the campaign’s strategical blunders so far, it seems more likely to take the opposite route. If ObamaCare is struck down (completely or in part), the Democratic base will go ballistic. The left already views Obama as a weak leader who has acquiesced to Republicans and failed to push through a more muscular progressive agenda. It would be devastating to have his single biggest accomplishment erased from the books. Unless the president publicly endorses an even more radical health care law to replace ObamaCare, progressives may be reluctant to support him for another term.

On the other hand, if ObamaCare is upheld by the Supreme Court, the left will have an additional reason to turn out and vote — if only to prevent Mitt Romney from taking office and dismantling the chief progressive accomplishment of the past four years.

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Still More Liberal Legal Meltdown

A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”

Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.

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A letter in today’s Wall Street Journal, responding to Michael McConnell’s op-ed on “The Liberal Legal Meltdown Over ObamaCare,” acknowledges that “liberal constitutionalists” are ill-suited to cry “judicial activism,” having long advocated a philosophy that “unmoors constitutional interpretation from the actual text of the Constitution.” But the writer goes on to assert that “no real judicial conservative” should argue ObamaCare is unconstitutional, because to suggest Congress is not “regulating a form of economic activity” by mandating insurance purchases is “conceptual and economic sophistry.”

Later this month, the Supreme Court will likely decide whether the power to “regulate commerce” includes the power to order individuals to engage in it so Congress can regulate them. An affirmative answer would seem to convert a specifically-enumerated power into an unlimited mandate over any significant economic decision, including a decision not to participate in commerce designed by Congress. Such a conclusion might be attractive to a “liberal constitutionalist,” but it is hard to see why a “real judicial conservative,” or anyone else who felt bound by the text of the Commerce Clause, would buy it.

As for conceptual and economic sophistry, nothing is likely to top Justice Breyer’s suggestion during oral argument that, on the day you were born, “because you are a human being, [you] entered this particular market, which is a market for health care.” Being born, as the trigger for power under the Commerce Clause, seems a bit of a stretch even for a liberal constitutionalist.

In any event, today’s WSJ letter, dismissing the challenge to ObamaCare as “sophistry,” is another example (to use John Podhoretz’s words) of “the unerring liberal inability” to credit the arguments of opponents – and another pre-emptive libel of a Court that may be about to moor Congress’s power to the text.

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Will the Court Follow the People?

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.

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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.

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Will the Media Be More Fair in ’12 Election?

The White House is still feeling heat from President Obama’s comments suggesting it would be “unprecedented” for the Supreme Court to overturn a law passed by Congress. And much of it has to do with the fact that the media is actually doing its job and calling the president out on his falsehoods:

During robust questioning when [White House Press Secretary Jay] Carney was told at one point that he had mischaracterized what the president had said, the press secretary was forced to repeatedly defend the remarks of his boss as an observation of fact.

“Since the 1930s the Supreme Court has without exception deferred to Congress when it comes to Congress’s authority to pass legislation to regulate matters of national economic importance such as health care, 80 years,” Carney said.

“He did not mean and did not suggest that … it would be unprecedented for the court to rule that a law was unconstitutional. That’s what the Supreme Court is there to do,” Carney said.

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The White House is still feeling heat from President Obama’s comments suggesting it would be “unprecedented” for the Supreme Court to overturn a law passed by Congress. And much of it has to do with the fact that the media is actually doing its job and calling the president out on his falsehoods:

During robust questioning when [White House Press Secretary Jay] Carney was told at one point that he had mischaracterized what the president had said, the press secretary was forced to repeatedly defend the remarks of his boss as an observation of fact.

“Since the 1930s the Supreme Court has without exception deferred to Congress when it comes to Congress’s authority to pass legislation to regulate matters of national economic importance such as health care, 80 years,” Carney said.

“He did not mean and did not suggest that … it would be unprecedented for the court to rule that a law was unconstitutional. That’s what the Supreme Court is there to do,” Carney said.

Take a look at the video to see Carney try to spin the president’s comments as the “reverse of intimidation.” Politifact also checked into Obama’s assertions, and rated them false in a scathing review:

There’s simply no support for the assertion that the law was passed by a “strong majority.” It was passed along party lines in a sharply partisan climate, and the 60 votes in the Senate were the minimum needed to keep Republicans from bottling it up in a filibuster.

But the “unprecedented” idea is more nuanced. It’s without question that the Supreme Court overturning a law passed by Congress — by any margin — is a common and routine occurrence, and by no means without precedent. Volokh gave us a close analogy with the case of Boerne v. Flores, a religious freedom law that glided through Congress but was held unconstitutional by a majority of the court, including two of its liberal justices. …

But we’re taking Obama literally, and that historical perspective was not reflected in his original statement, which is what we’re ruling on. He simply said the law passed with a strong majority and overturning it would be unprecedented. Wrong and wrong. We rate the statement False.

Many have questioned why Obama, a supposed constitutional law scholar, would make comments so obviously inaccurate. I doubt it’s out of ignorance. As a former student of Obama’s pointed out, he didn’t seem concerned about the courts overturning “duly constituted and passed laws” when he was teaching at Chicago.

The reason Obama made these comments might be simpler. He thought he could get away with them. In the past, the media simply hasn’t called him out on the inaccuracies and distortions in his speeches. That changed this week, and may be a sign this presidential election may at least have fairer news coverage than the last.

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The President’s Abysmal Record

Is this the week the Obama administration’s remarkable incompetence begins to be the narrative? If so, he’s toast.

The president’s astonishing, not to mention indefensible, lecture to the Supreme Court this week, in which he turned 200 years of American constitutional history on its head, has been the talk of the blogosphere. But it’s not just the fact that he pretends to have not heard of Marbury v. Madison, it’s the anger behind his remarks that he is having trouble concealing. Even his old professor at Harvard felt he had to weigh in.

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Is this the week the Obama administration’s remarkable incompetence begins to be the narrative? If so, he’s toast.

The president’s astonishing, not to mention indefensible, lecture to the Supreme Court this week, in which he turned 200 years of American constitutional history on its head, has been the talk of the blogosphere. But it’s not just the fact that he pretends to have not heard of Marbury v. Madison, it’s the anger behind his remarks that he is having trouble concealing. Even his old professor at Harvard felt he had to weigh in.

It is not hard to see why he might be angry. His single major domestic accomplishment, Obamacare, is in mortal peril in the Supreme Court. InTrade has the chances of its being overturned at 63.8 percent this morning. And it remains deeply unpopular with the public at large. His other domestic efforts have been largely a bust. The stimulus did not produce the promised economic boost and recovery from the recession remains stubbornly slow and unemployment stubbornly high. Green energy is failing and failing and failing. The price of gas has nearly doubled since he became president, despite the recession, while domestic production of oil and natural gas has been rising despite his policies, not because of them.

And, of course, the country continues hell-bent towards the fiscal cliff at the rate of $1 trillion plus per year. Obama, and the Senate Democrats, have not even tried to do anything about something the people in poll after poll have called their number one concern.

As for his foreign policy successes, I’d list them except there haven’t been any. His failures are numerous. Our antagonists, such as Iran, Korea, Russia, and China have little or no respect for him, and thus no inclination to play ball. He has managed to alienate such important allies as Britain and Israel. Indeed, his very first foreign policy act was to insult Britain by summarily returning a bust of its great national hero, Winston Churchill–the man who saved the world in 1940–to the British Embassy. It’s only gotten worse. Last week, his open-mic gaffe with the Russian president was greatly embarrassing. This week’s summit with Mexico and Canada revealed deep problems within the North American alliance, problems that were hardly noted in the American mainstream press–a wholly owned subsidiary of the Obama re-election campaign–but were widely on view in the Mexican and Canadian media.

In sum, it’s a remarkable record, especially for a man who thinks of himself as a transformational figure in American history. The president looks in the mirror and sees FDR. Increasingly, the rest of the country look at him and see Jimmy Carter, perhaps even James Buchanan. They were both one-term presidents.

 

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Another Liberal Libel of the Court

John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.

The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.

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John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.

The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.

His post is not even internally consistent. He asserts conservative justices are relying on “the strict and arbitrary language of an antique Constitution,” which seems to cut against his argument that they are preparing to rule “in spite of text.” His real problem is the text itself, not justices who think they must stay within it. Stripped of his tendentious adjectives (“strict,” “arbitrary,” “antique”), Prof. Dworkin is criticizing judicial reliance on the “language of [the] Constitution.”

That reliance was inherent in Justice Kennedy’s first question to the Solicitor General: “Can you create commerce in order to regulate it?” The answer is not obvious, nor non-controversial, nor addressed by any prior Court precedent.

Which suggests that the place to start the analysis is the text of the constitutional provision. In A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (Princeton University Press: 1998), Justice Scalia writes:

If you … read a brief filed in a constitutional law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. The starting point of the analysis will be Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced us from the original text and understanding.

In the case of Obamacare, the prior precedents do not “obviously” support the law, which accounts for the fact that the plaintiffs are not asking the Court to overrule any prior case. The argument instead is that the Commerce Clause, by its terms, gives Congress the power to regulate commerce, but not to force every individual into it — to regulate those engaged in commerce, not to require every person to buy whatever Congress wants them to buy. Prior case law allows Congress to regulate farmers engaged in producing wheat, not to require every person in the country to buy Wheaties.

The Court can decide this case either way precisely because the issue has not previously been addressed. But the text and original understanding of the Commerce Clause suggest the answer to Justice Kennedy’s question is “no,” and Dworkin’s citation of “basic constitutional principle” (he neither cites nor discusses any actual Court precedents) suggest he is appealing to some uber-concept outside the text of the law.

Perhaps he shares the view that Senator Barack Obama expressed at the time of Justice Roberts’ confirmation hearing: that in important cases justices should rely not on the language of the law, but on what is in their wise hearts. We can see the problem with this approach in Prof. Dworkin’s post, which impugns the integrity of the justices who might disagree with his heartfelt position. Rather than demonstrate that the problem is the Court (it is not), he has provided an extraordinary example of the trait John noted.

 

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Maureen Dowd, Light as Air

It’s no secret, and it’s no surprise, that liberal commentators have become enraged at the conservative members of the Supreme Court, who exposed the Patient Protection and Affordable Care Act as an unconstitutional and unholy mess in last week’s oral arguments. It would be a full-time job keeping track of the invective. But one person does deserve special mention: Maureen Dowd of the New York Times.

In her column, she says of the current Court, “It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.”

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It’s no secret, and it’s no surprise, that liberal commentators have become enraged at the conservative members of the Supreme Court, who exposed the Patient Protection and Affordable Care Act as an unconstitutional and unholy mess in last week’s oral arguments. It would be a full-time job keeping track of the invective. But one person does deserve special mention: Maureen Dowd of the New York Times.

In her column, she says of the current Court, “It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.”

Now that is rich. Dowd’s columns are, without exception, an intellectual content-free zone. They are mood-pieces, a window into the unstable emotional state of liberal east coast elitists. Her words are unburdened by facts, reason, or analysis.

That isn’t a crime, and it even serves a purpose of sorts. But she’s impossible to take seriously. And for her to criticize Antonin Scalia’s grasp of the law is like a third-string quarterback in middle school criticizing Peyton Manning’s grasp of football.

Dowd is as light as air.

 

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Appeals Court Orders DOJ to Clarify “Judicial Restraint” Position

An unusual request, but then again, the president’s critical remarks about the Supreme Court on Monday were also unusual. A three-judge panel of the 5th Circuit Court of Appeals, all Republican appointees, is requiring the Department of Justice to submit a three-page, single-spaced letter tomorrow on whether the Executive Branch believes that courts can strike down laws that are found to be unconstitutional.

CBS News reports:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. …

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

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An unusual request, but then again, the president’s critical remarks about the Supreme Court on Monday were also unusual. A three-judge panel of the 5th Circuit Court of Appeals, all Republican appointees, is requiring the Department of Justice to submit a three-page, single-spaced letter tomorrow on whether the Executive Branch believes that courts can strike down laws that are found to be unconstitutional.

CBS News reports:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. …

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Was this an honest request, or a political stunt? Obviously, the Obama administration’s position on this is relevant in this case. However, this is only going to feed into the latest contention from Democrats that there’s too much politicization in the courts. At Volokh Conspiracy, Orin Kerr writes that the 5th Circuit’s request was inappropriate, particularly since the DOJ lawyer had already responded to the question in court:

Having heard the audio, the tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.

President Obama has also clarified his comments since Monday, which could change the court’s mind about the order before the deadline tomorrow.

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The Week Obama Jumped the Shark

In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”

Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.

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In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”

Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.

Obama, a former community organizer who is perhaps unaware of the finer points of the law, might want to acquaint himself with an obscure  19th century case, Marbury v. Madison, which established the doctrine of judicial review and grants federal courts the power to void acts of Congress that are in conflict with the Constitution. What Obama describes as “unprecedented” has, in fact, been done countless times since 1803.

Then there’s Obama’s confusion about judicial activism. It is not, as he insists, simply the act of overturning an existing law; it is when judges allow their personal views about public policy, and not the Constitution, to guide their decisions and often invent new rights out of thin air. For Justices to invalidate a law they deem to be unconstitutional is precisely what the Supreme Court is supposed to do. (“No legislative act … contrary to the Constitution, can be valid,” is how Alexander Hamilton put it in Federalist #78.) If one takes Obama’s words literally, he believes an unjust and unconstitutional law, if passed by a strong majority of a democratically elected Congress, cannot be overturned.

What the president said, then, was so ill-informed, so ignorant, that people assumed he must know better. There’s no way we can know. But whatever the case, this has been quite a bad stretch for the president. His comments about the Supreme Court, when combined with his astonishingly dishonest attack on the House GOP budget (see here for more), portray a president who is living in a fantasy world — a place where facts and history are inverted, lies become truth, where everything is subordinated to ambition and you simply make things up as you go along. Nietzsche referred to this mindset as the “will to power.” In American politics it’s known as The Chicago Way.

I don’t know what the political effect of all this will be. But intellectually, this is the week where Barack Obama jumped the shark. In a deep, fundamental way, he is no longer a serious man. Nor an honest one. His public words are now purposefully bleached of truth. And that is a painful thing to have to say about an American president.

 

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Liberal Congressman Urges Obama to Campaign Against SCOTUS

Between now and the Supreme Court’s ruling on Obamacare in June, we’re sure to see a lot of these attacks on the supposedly activist conservative court. The Wall Street Journal editorial board did a good job yesterday skewering the idea that overturning the mandate would be an example of judicial activism, but if the court strikes down the mandate or full law as many have speculated, the “activist” argument is really the only card the Democrats can play.

Rep. James Clyburn (D-S.C.) said President Obama should campaign against the Supreme Court, painting it as a conservative, activist institution if it rules that the administration’s healthcare law is unconstitutional.

“In terms of the Congress, I believe that it would be off-base for us to do that, but for the president, I don’t think it is,” Clyburn said on MSNBC’s “Morning Joe” on Monday. “I think the president ought to take a look at what happened in years before — we’ve seen presidents run against Congress and we’ve seen presidents run against the Supreme Court. Franklin Roosevelt did it to the Supreme Court; [Harry] Truman did it to the Congress.”

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Between now and the Supreme Court’s ruling on Obamacare in June, we’re sure to see a lot of these attacks on the supposedly activist conservative court. The Wall Street Journal editorial board did a good job yesterday skewering the idea that overturning the mandate would be an example of judicial activism, but if the court strikes down the mandate or full law as many have speculated, the “activist” argument is really the only card the Democrats can play.

Rep. James Clyburn (D-S.C.) said President Obama should campaign against the Supreme Court, painting it as a conservative, activist institution if it rules that the administration’s healthcare law is unconstitutional.

“In terms of the Congress, I believe that it would be off-base for us to do that, but for the president, I don’t think it is,” Clyburn said on MSNBC’s “Morning Joe” on Monday. “I think the president ought to take a look at what happened in years before — we’ve seen presidents run against Congress and we’ve seen presidents run against the Supreme Court. Franklin Roosevelt did it to the Supreme Court; [Harry] Truman did it to the Congress.”

Obama probably isn’t looking to Clyburn for campaign strategy, but the congressman’s comments do provide insight into the liberal mindset at the moment. The Supreme Court went into the Obamacare hearings with record low approval ratings of just 28 percent in the latest Rasmussen, and perhaps the Wall Street Journal is right that the criticism of the court is purely a public lobbying effort by the left – a warning to Justice Kennedy that his legacy hangs in the balance and an appeal to Chief Justice Roberts’ supposed sensitivity about the public image of his court.

On the other hand, liberals may actually have an appetite for an anti-SCOTUS campaign led by the president next fall, especially as their anger about the Citizens United ruling still hasn’t ebbed. But even with the court’s low approval rating, this seems like an ill-advised strategy. Obama’s health care law is unpopular, and the majority of Americans believe it’s unconstitutional. If the Supreme Court also takes that position in June, then Obama attacking the justices for it on the campaign trail isn’t going to be very helpful.

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