We're Supposed to Like Judicial Activism

Posted on April 5, 2012 at 12:32 pm by Bob Cesca

Many liberals, including the president, are attacking the Supreme Court for using judicial review to potentially overturn a law. Even though we like the law in question (most of us anyway), we’re supposed to support this role of the judiciary. Since Marbury v Madison, this has been the way things work here.

Republicans — especially Ron Paul people — are the ones who are generally opposed to judicial review and judicial activism.

So fine. Attack Republicans like Mark Levin and Karl Rove for being hypocrites, but we have to be careful here.

Once again, it’s the hypocrisy, not the actual statement. If conservatives are suddenly in favor of judicial review — agree with them and then use it against them the next time they bitch about “activist judges!” Don’t suddenly take the opposite position just because we happen to like the ACA.

If we’re in favor of judicial review then, ultimately, we have to take the good with the bad, even if it means overturning laws that we support.

And I hasten to note, I am stridently opposed to the Supreme Court potentially overturning the ACA, but I’m not opposed to the method by which it might be done.

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  • http://www.facebook.com/people/Michael-Norris/1597765442 Michael Norris

    Amen. Word. Two words Republicans and conservatives never get to use again are “activist judges!” Conservatives have now reached the point in opposing everything Obama does and says that they have circled the wagons around themselves. They are enclosed in there own loop. And to continue my string of metaphors, what comes next is the circular firing squad.

    You are right, Bob, in that we need to be careful as progressives that we don’t do the same thing. Opposing what they like when they used to oppose it makes us look like we are just opposing to oppose in the same way that they oppose Obama just to be oppositional. (I’m getting dizzy here…) Anyway, I agree with what you said.

  • missliberties

    The Courts are supposed to be ‘demilitarized’ zones, free from partisanship.

    The language of the law is specifically intended to calm the waters of populist rhetoric.

    It is just a sad state of affairs that literally NOTHING in our country isn’t framed as by the parties divides.

    Any judge that uses the term Obamacare in a court of law, is not impartial.

    • Draxiar

      Allow me to add that any judge (Scalia for instance) that scoffs at the notion of actually reading the legislature on which he’s about to rule thereby making an informed decision is not impartial.

      • missliberties

        The delightful Rush Limbaugh made it clear as a bell that he is the defacto leader of the GOP yesterday.

        “Now, yesterday afternoon a federal judge by the name of Jerry Smith at the Fifth Circuit Court of Appeals in Houston had had enough, and he demanded that the Justice Department give him a three-page memo on whether or not this administration understands the concept of judicial review. Now, I saw this and I started cheering. I started laughing. Because it’s about time people started fighting back on this. The American people love the concept of a team. You have to have the right people on the team, but we are a team here. There is a team that’s opposing this president, and attempting to make him a one-termer this November at the ballot box. It’s great to have this response.”

        See even the judges are in on Rush’s ‘team’ to make Obama a one termer. It isn’t about the constitutionality of the law. It is about defeating Obama.

  • Victor_the_Crab

    Haven’t you heard? IOKIYRWC! INOKIYAPL.

    As a famous man is fond of saying: “Just when they have all the answers, we change the questions!”

  • i_a_c

    Like most things, there’s a nuanced position here.

    When the president said that overturning a law passed by a strong majority of Congress was unprecedented, that was factually incorrect. Marbury v. Madison is the correct interpretation.

    The president later clarified his remarks. Here’s what’s most troublesome: J. Kennedy asked the Solicitor General during ACA oral arguments whether the government has a burden to overcome to prove that the law is constitutional. That is exactly backwards. Laws passed by Congress are presumed constitutional, and the burden is on the challenger to prove it is not.

    The problem with the Court is that the five Republicans are not merely reviewing laws, they are searching for reasons to overturn rulings. In Citizens United v. Federal Election Commission, partially striking down McCain-Feingold, the Court reversed its previous 1990 ruling which said that influence of mass wealth can have an unfair influence on elections. Roberts and Alito concurred with a separate opinion describing why it was so important to reverse itself. So what is clear is that the rightwing Republicans on the Court are not concerning themselves with precedent, even recent precedent. They will seek out a reason to ignore precedent and pick and choose which laws to uphold.

    One caveat: what Justices Roberts and Alito made clear in Citizens United is that there are times the Supreme Court reverses itself for the greater good. Which is true. But almost comically, they were stressing the importance of the principle of judicial restraint while doing no such thing.

    Overturning laws is, in itself not “activist.” However, turning the Court in a sharp direction away from judicial restraint and toward a different, arbitrary direction to the liking of the five Republicans is a radical turn of events unseen since Lochner. If The Five overturn the ACA, they will leave no shadow of a doubt that they are turning a blind eye to Congressional factfinding, precedent, and judicial restraint. This is actually “legislating from the bench,” actually “judicial activism,” not what the rightwingers think it is.

    • http://www.politicalruminations.com/ nicole

      “Overturning laws is, in itself not “activist.” However, turning the Court in a sharp direction away from judicial restraint and toward a different, arbitrary direction to the liking of the five Republicans is a radical turn of events unseen since Lochner. If The Five overturn the ACA, they will leave no shadow of a doubt that they are turning a blind eye to Congressional factfinding, precedent, and judicial restraint. This is actually “legislating from the bench,” actually “judicial activism,” not what the rightwingers think it is.”

      Nailed.It.

    • missliberties

      The Court’s job is to determine the constitutionality of the legislation. The mandate regulates commerce and is clearly constitutional, and unseverable.

      Once again, the President has has handed folks a line, and the GOP took the bait, hook, line and sinker, thus proving beyond a shadow of a doubt, that the constitutionality of the law is not what is in question but the partisanship of the Court is.

  • GrafZeppelin127

    The Court will have to create a new Constitutional doctrine in order to overturn the law. No existing doctrine, rule or test in Constitutional Law could be employed to find the law unconstitutional; there is no existing line in the law that the statute can reasonably be said to have crossed. The Court will have to create that line and then find that the ACA has crossed it.

    Ultimately, I don’t think the Commerce Clause can or will be the issue; rather, the Necessary and Proper Clause. “Congress shall have the power to … make all laws which shall be necessary and proper for the carrying into execution” the power to regulate interstate commerce. There’s no question that health insurance is interstate commerce and Congress therefore has the power to regulate it. But can they regulate it in this particular way, viz., by requiring uninsured individuals who don’t qualify for Medicaid to get insurance, to provide exchanges and subsidies to help them do it, and charge a nominal tax if they choose not to? In short, is the mandate necessary, and is it proper?

    As I said, there is no existing rule, standard or test that would answer either question in the negative. The Court traditionally defers to Congress on findings of necessity and propriety; the law requires only a rational basis.

    • i_a_c

      The Court will have to create that line and then find that the ACA has crossed it.

      In the same vein, Graf, couldn’t the Court also create a line and then find that the ACA has not crossed it?

      • GrafZeppelin127

        I suppose, but I’m not sure what the point would be. Then again, maybe the Court could say “OK, you can mandate this, because you have elements X, Y and Z (for example, (1) a limited, relatively small cohort subject to the mandate, (2) substantial federal help in enabling compliance, (3) a nominal “penalty” that is functionally impossible to specifically enforce, and (4) a highly unique market where if you don’t buy the “product” you effectively get it anyway), but you can’t mandate anything else.”

        • i_a_c

          My point was that one is just as arbitrary as the other, which I think you have outlined effectively.

    • http://drangedinaz.wordpress.com/ IrishGrrrl

      Graf, I think that you are saying the I_a_c…they want to overturn it so they are searching for reasons and they’ll make a new doctrine in order to get what they want.

      • i_a_c

        That’s what I fear will happen. I’m trying to maintain a shred of optimism but it’s difficult.

        ;_;

      • missliberties

        I believe that because the law is unseverable, they either have to uphold it, or overturn the whole thing.

        • GrafZeppelin127

          I agree but for a different reason.

          The one thing this Court can be counted on to do is reach whatever the most pro-corporate outcome is. The problem is that the most pro-corporate outcome is not entirely clear. The insurance and pharma companies certainly don’t like the consumer protections and cost controls, but they do like the mandate. So the court is not going to uphold the former while striking down the latter; that is simply not an option.

          Is it better for big insurance/pharma/biotech to live with the consumer protections and cost controls and get all these new healthy customers paying premiums, or can they make more money by continuing to screw people over and charge higher and higher premiums to fewer and fewer customers?

          In the end, maybe the Court will skip the economic analysis and decide that the most pro-corporate outcome is the one that helps the Republicans politically.

          • http://twitter.com/bubblegenius Bubble Genius

            Can we delete this thread just in case a SCOTUS clerk is reading it? (Don’t give them any ideas.)

    • missliberties

      The mandate is essentially voluntary. If you don’t comply you are taxed but there is no ‘punishment’ or way to enforce the tax.

      • GrafZeppelin127

        Apart from ordinary tax enforcement, no. While it is technically true that you can go to jail for tax evasion, this particular tax is ultimately not severable from the rest of your tax liability. Not to mention the fact that practically no one will have to pay it involuntarily; those too poor to afford it qualify for Medicaid anyway, those who don’t qualify for Medicaid will get subsidies to buy insurance on the exchanges, and those who don’t need subsidies can afford to buy insurance. You’d have to consciously and deliberately choose to pay the tax instead. In practice it’s neither coercive nor punitive.

        But that’s not the point. My point is that this does not cross any line that has been established in Constitutional Law. The justices will have to create a line for it to cross.

  • http://drangedinaz.wordpress.com/ IrishGrrrl

    IMHO Sure they could, but that’s not likely