The further to the left or the right you move, the more your lens on life distorts.

Tuesday, June 26, 2012


Extremists of both the Right and the Left hate the Supreme Court (SCOTUS) when it rules positively on an issue they disagree with, and love SCOTUS when it upholds an issue that they embrace. That's how ideology warps perception. On Thursday, ideologically warped perception will be in full swing as SCOTUS rules on the constitutionality of major provisions within Obamacare.

In 2009-10, the President and his supporters created and then rammed through a health care plan that was poorly constructed, unclear, exorbitantly expensive, and as partisan as any major legislation passed in the last 70 years. But that is not what SCOTUS is looking at. Its focus is narrow are well-defined—does the so-called "mandate" violate the commerce clause of the constitution?

If SCOTUS rules against Obamacare, heads on the political Left will explode. You'll hear accusations of right wing bias and strident laments of the "right-wing political activism" on the Roberts' court.

Jonathan Adler comments on the activism of the Roberts court:
The problem with these characterizations of the court is that if by “judicial activism” one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period. As a recent NYT analysis showed, thus far the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors. Further, many of the Court’s most “activist” decisions, so-defined, have moved the law in a more liberal direction (see, e.g., Boumediene, Kennedy v.Louisiana) or were broadly supported First Amendment decisions (e.g. Stevens). This does not mean the Roberts Court’s decisions are correct and there are exceptions to every rule. Nor does the court’s past conduct necessarily predict the future. It does, however, mean that when one looks at the Court’s overall behavior (and not at a single case) it is inaccurate to say that this Court is particularly “activist” in moving the law in a conservative direction by overturning precedents and invalidating federal laws.
Every supreme court interprets the constitution in a reasoned fashion. Although each of us may not agree with every decision, I think the court's rulings (whether from a liberal court like Earl Warren's, or a conservative court like John Roberts') are made with in good faith.

If Obamacare's provisions are struck down, I suspect that the President's strategy will be to change the subject. Rather than recognizing the he and his supporters over-reached, and as a consequence, created major legislation that was constitutionally sloppy, he'll do what he does best—change the subject. Instead of having the grace to accept SCOTUS's decision (should they rule against him) and reach out to his opposition to create a more acceptable health car law, Barack Obama and his surrogates will campaign against the court.

In my view, calling the court's ethics and intent into question is unbecoming of a President who promised a different kind of politics. It is despicable and divisive, but it will come as no surprise.