Supreme Court and Judicial Activism on Health Care

Methink they doth protest too much. President called the Supreme Court Justices who are contemplating overturning Obamacare “judicial activists.” One definition of judicial activism is the usurpation of the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy.
If they overturn the individual mandate, the Justices will render an opinion that will likely fly in the face of 60 years of broad interpretation of the U.S. Constitution’s Commerce Clause. It is not a coincidence that the Commerce Clause was the legal architecture used to strike down the scaffolding of private commercial segregation across the Jim Crow South during the 1950’s. There are even whispers among the extreme right about legislative amendments to the Commerce Clause, in order to narrow its reach. This is strange talk from folk who also purport to believe in unfettered capitalism. There is an inherent and growing tension between the Commerce Clause and the 10th (State’s Rights) Amendment.
It was right-wing Republicans who coined and promulgated the phrase judicial activist to denigrate judges whose judicial philosophy differs from their own. Judicial activism is in the eye of the beholder. The Fifth Circuit, which complained today about the President’s remarks, is more conservative than most of the federal circuits and sits in President Obama’s enemy territory, the deep red south.
Bravo for the President. Obamacare is the foundation of the political challenge he faces in November, whoever the candidate is. How many times have Rick Santorum and Newt Gingrich indicated that Romney’s Massachusetts health care plan is so similar to Obamacare that it disqualifies him as the GOP’s nominee? The GOP and the Tea Party have taken dead aim at Obamacare as the centerpiece of their electoral strategy. The five jurists who may vote to strike down the individual mandate are all conservative Republican appointees. Are we to believe that they have no partisan leanings? That they were purged of all political thoughts on the day of confirmation? This is philosophically the same Court that decided the 2000 Presidential election, by stopping the vote count and delivering the White House to George Bush II in an opinion so partisan that the Justices themselves warned not to view it as a precedent for future decisions. Let’s not kid ourselves, the President’s political opponents
on the Supreme Court want to overturn Obamacare and the President has a right to defend it…and us.
Oliver Wendell Holmes wrote,
The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.
If the President is not “feeling” the Justices, he has every right to say so. The right wingers are protesting and seek to graft onto the Presidency a prohibition against commenting on judicial philosophy of sitting jurists. There is no such prohibition. Judges may not comment on cases before they reach the court – to avoid the appearance of partiality. But the President is a partisan and a citizen and labors under no such constraint. On the contrary, if he believes the Court means to act in a way to harm the American people, the separation of the Executive from the Judiciary means he has a duty to speak.