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.

Judge Robert's brilliance

I just read an explanation of Robert's move, and I am even more impressed.  My first thought is that it is very good news that he did not legislate from the bench.  But, even better is how he did it.


Those arguing for the constitutionality of Obamacare argued that it was allowed under the Commerce Clause.  But, if Congress can force people to buy something, that is not a good thing.  That is too much power for Congress to have.  So, the argument against Obamacare, when looking at it from the point of view of the commerce clause, was very persuasive. As argued by Randy Barnett, a strong voice against the law:


"The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers"


But Roberts changed the argument.  He allowed the constitutionality of Obamacare and, at the same time, limited the reach of the commerce clause. He said, in effect: "Mandate? What mandate to buy insurance? There's no mandate, anyone can refuse to buy insurance, they will just have to pay a fine, which is nothing more than a tax.  Same as a tax on cigarettes to discourage smoking, this is a tax to fund Obamacare, not a mandate to purchase insurance."  


So, the law stands -which makes liberals happy, but the commerce clause is restricted and cannot include a mandate from Congress to buy something - which should make conservatives happy, if they pause long enough to think about it. In other words, Congress is not allowed to force us to buy broccoli.


The best lawyer in the room changed the basis of the argument and achieved two results: he limited the power of Congress in their use of the Commerce Clause to force people to engage in economic activity, and he restrained the power of the Supreme Court keeping it from legislating from the bench.  


Bravo.

Chief Justice Roberts decides not to legislate from the bench

On March 27 of this year I had written on this blogsite that I hoped that the Supreme Court would not legislate from the bench and overturn one of the biggest and most consequential laws passed by the legislature in decades.  My hope was realized today as the Supreme Court Chief Justice, John Roberts, sided with the four "liberal justices" and upheld Obamacare (Affordable Care Act).  


As I understand it, Chief Roberts' main argument is that the charge that it was unconstitutional to have the "individual mandate" force people to buy health insurance is a false one because there actually is no mandate, only a penalty for those who refuse to buy insurance, which is nothing more than a tax, which Congress has the constitutional right to impose.


If the country doesn't like Obamacare, the proper remedy is at the ballot box. If the Republicans want to base their November campaigns on overturning the health care law, that is up to them.  But to my mind, there are much more important issues confronting the country:  the economy, the deficit, the still too reckless financial system, the Eurozone crisis, and the Arab Awakening and the changes it is causing in the middle east, for example.  


I thought that Obama wasted a precious year and a half at the start of his presidency focusing on health care rather than concentrating on the terrible Great Recession.  I hope that the Republicans don't make the same mistake now.  There are more important issues to deal with than this ideological obsessions of the right wing.  

Supreme Court Vacancy

With the passing of Supreme Court Justice Antonin Scalia, the political world has been thrown into a frenzy.  There is no doubt that Scalia’s influence on legal thinking has been profound – in two ways.  First, he was most famous for insisting on deciding cases before the Court based upon interpreting according to the original intent of the Constitution. Second, he was a leader in the charge by conservatives to rule conservatively on cases before him – from gun rights, to social issues, to business and labor issues. 

These two legacies are contradictory,of course, because you could easily conclude that by relying on original intent you would not end up with either conservative or liberal results on the whole.  But, Scalia and the other reliable conservative votes on the bench advertised themselves as jurists sworn not to legislate from the bench, but their actions have been pretty consistently politically predictable. Their claims of not legislating from the bench simply do not ring true.  

Should the Senate confirm a new Justice to replace Scalia?  Of course.  The voting public has voted already on who is supposed to nominate a Justice – Obama won two consecutive elections, fairly handily as a matter of fact.  So, there is no excuse for him to avoid his constitutional obligation to nominate a replacement.

Will the Senate confirm a new Justice to replace Scalia?  Of course not.  Republicans have been relying on Scalia, and his spot on the court, as a reliable judiciary arm of the conservative movement, and they clearly have no intention of letting that seat become liberal.

Will Republican obstructionism hurt the Republicans?  Yes, I believe it will hurt them in this election year, and hurt them pretty badly.  It will be easy for the President to nominate a center-left judge to replace Scalia who has already been easily approved of by the Senate in earlier confirmation hearings for a lower court.  For the Republicans to simply refuse to consider such a person, or to do their best to demonize that person for headline news stories all the way to the election will make them look really ridiculously partisan, obstructionist, petty, unwilling to play fair, and incapable of the trust of the American voters. 

The Republican Party could well go down on the sinking ship of Republican Senate ideological warfare.

It will certainly not be an uneventful political year.