Rule of Law

The Dastardly Supreme Court

Brian Bolduc

After telling themselves that Obamacare’s individual mandate was patently constitutional, liberals are now aghast at the possibility — seemingly more likely after this week’s oral arguments — that it will be overturned. In a panic, the Left has leveled all sorts of ridiculous charges against the Supreme Court. Here are the three worst offenses.


1. The justices are hypocrites.


New York magazine’s Jonathan Chait growls that Justice Antonin Scalia — before he has even cast a vote, mind you — “is gleefully reversing his previous interpretation of the Commerce Clause.” For evidence, Chait links to a post by blogger NYCSouthPaw, who contends that one of Scalia’s comments during oral arguments “completely contradicts something [he] wrote in one of his most famous opinions.”


But it doesn’t. When Solicitor General Donald Verrilli argued that the mandate was no more novel than a host of other legislation the Court had upheld, Scalia replied, “Oh, no, it’s not. [The previous cases] all involved commerce.”


NYCSouthPaw quotes Scalia’s concurrence from Gonzales v. Raich, in which the Court held that Congress could prohibit private cultivation of marijuana — an intrastate, noncommercial activity. He brandishes what he thinks is the smoking gun: Scalia’s declaration that Congress could regulate “activities that substantially affect interstate commerce [that] are not themselves part of interstate commerce.”


But during oral arguments, Scalia distinguished this case from those precedents, explaining, “You’re saying that some people who are not in [the insurance market] must be in it, and that’s — that’s different from regulating in any manner commerce that already exists out there.” Indeed, Scalia can believe both that Congress can regulate intrastate, noncommercial activities “that substantially affect interstate commerce” and that non-ownership of insurance is a condition, not an activity.


Similarly dubious is the assertion that Chief Justice John Roberts, by joining the majority opinion in United States v. Comstock, pinky-swore to uphold the mandate. In that case, the Court held that Congress could authorize indefinite civil commitment of sexual predators. Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, told ABC News that “Comstock required only a rational relationship between the law and the enumerated power.”


Right, and the question is whether the mandate is a legitimate exercise of an enumerated power. Roberts or Scalia could decide it is, but they’re under no cast-iron obligation to do so.


2. The justices are legislating from the bench.


The Washington Post’s E. J. Dionne alleges that the conservative justices’ comments during oral arguments reveal that they “are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.” And the chief justice is Public Enemy No. 1:


One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”


Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?


Dionne completely divorces Roberts’s comments from their context. Roberts wasn’t opining on the desirability of these services; he was challenging the government’s premise. The solicitor general had argued that the mandate wasn’t forcing people to engage in commerce, because they were engaging in commerce already. They were demanding health-care services all the time, and so the mandate was merely regulating their method of payment; it was requiring them to get insurance policies up front.


“Your theory is that there is a market in which everyone participates because everybody might need a certain range of health-care services,” Roberts replied. “And yet you’re requiring people who are not — never going to need pediatric or maternity services to participate in that market.” Is reading the law a breach of judicial ethics?


Dionne also criticizes Justice Samuel Alito’s invocation of the Congressional Budget Office. Alito cited the CBO’s cost estimates for future insurance policies to illustrate the fact that the mandate would constitute a large transfer payment from the young to the old: Policies for the young would increase in cost, while those for the old would decrease. This fact also undermines the government’s premise that the mandate is a mere regulation of payment methods: Young people won’t be paying for their services up front; they’ll be paying for other people’s services.


Roberts and Alito weren’t making policy arguments; they were challenging the government’s fishy legal premise. And they wouldn’t have had to “dive into policy details” if the government’s argument hadn’t required them to do so.


3. The Roberts Court is more political than its predecessors.


After Tuesday’s oral arguments, CNN’s legal analyst Jeffrey Toobin warned, “I think people have always underestimated how political a body the Supreme Court is. . . . This is an incredibly activist court, especially when — sorry, I mean if — it overturns health care.”


This criticism is the hardest to debunk mostly because it is so vague. Liberals and conservatives alike have decried rulings they disliked as “judicial activism,” when the justices were simply upholding the law. (For an example, take conservatives’ reaction to Texas v. Johnson, in which the Court overturned a ban on flag burning as a violation of the First Amendment.)


A judicial activist is a justice who imposes his own vision of justice in place of the people’s, as indicated through the laws passed by their elected representatives and the Constitution. Discerning the original understanding of Constitution is an extremely difficult exercise, no doubt. But the assumption that the conservative justices aren’t ruling in good faith is unwarranted.


In recent reports, it’s been noted that 20 percent of the Court’s cases were decided 5–4 in the 2010 term. True, but 48 percent of the cases were decided 9–0, which reflects a pattern that has held for years. Is the Roberts Court any more divided than the William Rehnquist Court in 2000, when 30 percent of the cases were decided 5–4? Is the fact that Roberts and Alito agree 96 percent of the time really more troubling than the fact that Justices Elena Kagan and Sonia Sotomayor agree 94 percent of the time?


It is still entirely possible that the justices will vote to uphold the mandate by 5–4 or even 6–3. And the Left’s overreaction to their aggressive questioning — its threat that the Court will “lose legitimacy” if it overturns the mandate — shows a total disrespect for the rule of law.


— Brian Bolduc is an editorial associate for National Review.