Tuesday, March 27, 2012

Will the Supreme Court legislate from the bench?

The Supreme Court is considering the challenges to Obama's Patient Protection and Affordable Care Act starting today.  It seems to me that the most conservative position that the conservative members of the court can take is to leave it alone, unchanged, to stand as is.  

I think that one of the tenets of conservative courts is that they should not legislate from the bench.  This law is what laws are - flawed, messy, a cobbled together set of compromises needed to get it passed.  I have never been avidly for nor against Obamacare, and have always been more on the sidelines observing, with some distress, the process that the legislation took.  All told, I expect it to cost more than promised (what government program doesn't?), and I expect that it will provide health care for a huge number of people that didn't have insurance coverage prior to the law.  And I expect that the insurance companies will not be able to reject coverage for people with pre-existing conditions.  In other words, the basic claims of both the right and the left are correct.  

However, there is one thing that seems obvious to me: this law is one of the most powerful examples of legislation by the legislature in my lifetime.  This wasn't passed in the dead of night after minimum debate.  It was the result of an excruciating year long process played out in both the Senate and the House, with maximum publicity, with all segments of society and business passionately weighing in to try to influence the outcome. At the end, the legislation passed, and a new law came into being.

To overturn it would be one of the most blatant examples of legislation from the bench of all time.  That alone should convince the conservative justices to leave it alone, it seems to me.  

If Obamacare is to be overturned, it needs to be overturned by the legislature, not the courts.  The hard core right wing seem to think that the country is as eager to overturn it as they are.  I sincerely doubt it.  I think that a Republican push to overturn the health care law will blow up in their faces.  The fight to overturn the law will enrage the country all over again, and is a lost cause, as far as I can tell.  It is what the ideologues want to do, but I don't think the country has the taste for it.