King Barack’s loyalists are threatening one of the last roadblocks to the absolute right of POTUS. Earlier in his reign they were advising that He should ignore Congress and act as He pleased. Now they are trying to undermine the independence of the Supreme Court.
Jonathan Cohn at The New Republic:
Obamacare Is On Trial. So Is the Supreme Court.
Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act.
Now something else is at stake, too: The legitimacy of the Supreme Court.
Nobody knows how the justices will rule. And nobody can know, not even the justices themselves. On Friday morning, perhaps by the time you read this, they will meet privately to take their first vote. More often than not, this first vote determines the final verdict. But there are exceptions and Anthony Kennedy, on whose decision the outcome presumably depends, has a reputation for long deliberation and changes of heart—particularly in major cases like this one.
That’s good. With the result apparently in doubt—smart money still says the chances of the full law surviving are about 50-50—Kennedy should think long and hard about how he wants the Court to rule. So should Chief Justice John Roberts, who appeared more skeptical of the government’s case during oral arguments but nevertheless indicated that he, like Kennedy, understood the government’s premise—that health care was a special market, perhaps requiring special intervention.
If that concern is not enough to sway the chief justice, than perhaps his frequently professed concern for the court’s respectability will.
Even now, I have trouble wrapping my mind around what I saw in the courtroom this week and what a majority of the justices may be contemplating. Kennedy’s second question, the one that so unnerved supports of the law, was whether the government had “a heavy burden of justification to show authorization under the Constitution.” But the heavy burden in this case is on the justices threatening to strike down health care reform. They have not met it.
Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism. But, in two key repsects, they were different from a potential ruling against the Affordable Care Act.
Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majorities—in these cases, state legislators who’d passed laws enforcing segregation and prohibiting abortion. The justices’ authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.
Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to four—a bare majority. And it would be a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving.
That’s an interesting idea – requiring super-majority or unanimous decisions before the Supreme Court can rule that something is unconstitutional. Cohn is not alone – the Obot meme of the weak seems to be that SCOTUS is risking its own legitimacy if it dares to declare Obamacare to be unconstitutional.
The Judiciary branch is supposed to be an independent and co-equal branch of government. For good or ill, many SCOTUS decisions through history have been nakedly political. Nonetheless, we consider SCOTUS to be the final arbiter and court of last resort. In the words of the late Justice Robert H. Jackson, “We are not final because we are infallible, but we are infallible only because we are final.“
The issue as to whether Obamacare is constitutional is not frivolous.
Marbury v. Madison (my emphasis):
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Those of you who stayed awake in civic class may recall that Marbury v. Madison is that case that established to concept of judicial review in American jurisprudence. There is a reason that federal judges and justices are appointed for life (subject to impeachment) – to remove them from the effects of politics. What King Obama and his minions are trying to do is apply political pressure to the court.
Back in 2000 I was stunned and dismayed by the Supreme Court’s ruling in Bush v. Gore. But at the same time I took pride in the way my country reacted. We peacefully but unhappily accepted the ruling and moved on. How many nations would have seen bloody riots or even civil war in the same situation?
The Supreme Court slowed down but did not stop the New Deal and the Civil Rights Movement. Even now the Democrats are just one vote shy of a 5-4 majority. Do we really want to change a system that has worked so well for so long just for Obamacare?
Filed under: Affordable Care Act, Law and Constitution, Obamacare | Tagged: Law and Constitution, Obamacare | 57 Comments »