Conservative activist judges

The right-wingers rant about "activist judges" as though judicial activism is inseparable from "liberal."

Chief Justice John Roberts is said to care a great deal about the reputation and the legacy of The Roberts Court, and he seems to want it to be known for restraint and respect for precedent.

Then he has some household chores to do with his fellow conservative justices on the Supreme Court, because this group of nine (himself included) is about to redefine the meaning of "conservative activism."

Consider Bush v. Gore and Citizens United as two recent examples of an over-reaching court decision by the conservative majority.   Or consider the questions asked by the conservatives in the Affordable Care Act during this week's unprecedented three days of hearings.

As E. J. Dionne writes in the Washington Post, they seem ready to act as an alternate legislature, discussing the fine points of the 2700 page law, quoting budget figures, devoting a whole day of arguments about whether the whole bill could survive if they overturn the individual mandate and speculating about whether it could have passed without the mandate.  In other words, they are definitely delving into the political negotiations of the creation of the law rather than sticking to its constitutionality.

Let's be clear:   an activist judge is not a liberal judge but one who makes new law rather than deciding on the constitutionality of old law and precedent.   It was those liberals Breyer and Sotomayor who reminded their colleagues that some of the issues being discussed were the merits of the bill, which is the job of the legislature, not the courts.

Dionne reminds us that:

"The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.

"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?

"The court’s right-wing justices seemed to forget that the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation's Stuart Butler.
 
“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”

"Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that “we’ve obligated ourselves so that people get health care,” Scalia replied coolly: “Well, don’t obligate yourself to that.” Does this mean letting Butler's guy die?

 "Slate's Dahlia Lithwick called attention to this exchange and was eloquent in describing its meaning.  “This case isn’t so much about freedom from government-mandated broccoli or gyms,” Lithwick wrote. “It’s about freedom from our obligations to one another . . . the freedom to ignore the injured” and to “walk away from those in peril.”

"This is what conservative justices will do if they strike down or cripple the health-care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology."

One consequence of having the law struck down will likely be a renewed push for a single payer system of health care -- made available to every citizen and paid for by taxes.   Medicare for All would be the simplest way to implement that.  By one estimate, all the administrative savings could pay for the premiums for all those currently uninsured.

Ralph