Imagine the most bizarre rant you’ve ever heard about “judicial activism”. Imagine it being delivered by Rush Limbaugh and Bill O’Reilly simultaneously while drunk. Imagine them delivering it in Esperanto, a language they don’t know. You will still not reach a thousandth of the anger and spittle and incoherence being spewed out by the Left Wing commentariat over the possibility that the Supreme Court will overturn Obamacare. And remember, this is just days after saying the lawsuits were frivolous, stupid and a waste of time and there was no way the Court would even consider overturning the mandate.
Here is Paul Krugman in a bizarre rant lurching from one topic to another, saying “it became clear that several of the justices, and possibly a majority, are political creatures pure and simple, willing to embrace any argument, no matter how absurd, that serves the interests of Team Republican.” This from a hearing in which in which the Solicitor General did such a horrible job, the liberal bench started to make his arguments for him. Jon Walker, in a more coherent vein, predicts that Obama would simply defy the Court. Andrew Koppelman has a bizarre comparison of Obamacare to a 1918 decision on child labor. David Dow says we should impeach the court if they rule against it (and you think the country is divided now). Dow, incidentally, is the author of a book praising judicial activism. And here is Maureen Dowd, ranting about how liberals focus on process while conservatives focus on results in and article that … concentrates on the results she wants rather than the process. And to cap it all off, you had the President himself calling for judicial restraint.
All of these proclamations follow the same pattern: How dare the Supreme Court even consider overturning this law. If they do, it will be because they are partisan hacks. It will permanently maim the institution.
This is such sanctimonious hypocritical bullshit that I don’t even think they believe it (indeed, the Fifth Circuit asked the Administration to clarify that they believe in judicial review and they did). I don’t recall such outcries over Kelo or Roe or Griswald, all of which set new precedents for federal power. I don’t recall them screaming like this over Boumediene, which limited President Bush’s power. But suddenly, when it looks the Court may overturn their sacred cow, the Courts are supposed to be restrained? Please.
(A few have gotten in some digs at SCOTUS’s bizzarre 5-4 decision allowing strip searches for any arrest. They have a point; but it’s not relevant to the Obamacare case. And they’d be silent on it if they didn’t think they could somehow link it to Obamacare. After all, they’ve been silent every other time the Court has eroded the fourth amendment.)
The claim that the Court should not overturn a piece of legislation passed by Congress is simply ridiculous. That’s what the courts are for. If Congress outlawed abortion, I severely doubt anyone on the Left would beg the Courts to not, in the President’s words, take the “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” They’d be screaming for the courts to overturn the law.
Let’s also take a step back and consider the strange idea these people have of “democracy”. If the US were a democracy — and thankfully we’re not — what would matter most is that the majority of the American people oppose the law. If we are a constitutional Republic, which we thankfully are, what matters is whether this law is compliant with the rules that we laid down delineating what our federal government can and can not do. But the Left is going for a very bizarre model — that legislation should be ultimately judged by whether the Democrats managed to wheedle 60 votes out of the Senate. That’s not democracy. And it certainly isn’t a constitutional republic. It’s floundering around, looking for any sort of justification for why a law should stand.
The thing is, all of these arguments are bullshit. Every word of the articles linked above is garbage and the writers know it. They are using these weak soulless arguments because they daren’t use the one that is really motivating them. They just can’t admit that something they have wanted for fifty years — semi-universal healthcare — may not be Constitutional, at least not the way it was implemented. They were so elated when Obamacare passed that the idea of losing it makes them, well, lose it. Moreover, they despise the idea that the Court may act to limit the government’s power. When the Court has extended the government’s power, they have never objected. But the idea that the Court can say, “Hey, you’re not allowed to do this” fills them with rage. They can not tolerate the notion of a federal government that is limited in its powers.
You are going to hear a lot more of this if the Court indeed overturns Obamacare. It won’t matter that they went to far or erred in how they constructed the law. It won’t matter that this was pretty much set up for any reasonable Court to take issue with. No, what will matter is the eeevil Scalia has taken away Obama’s signature achievement.
The last few days have destroyed the notion that the Left Wing is entirely comprised of reasonable cool-headed people who make arguments and consider all sides. The above articles, written by some of the most popular liberal writers, are no different than the worst anti-judiciary rants of Newt Gingrich. They are no more coherent than Michael Savage on a bad day. It took only the possibility of an overturn for the facade to crumble and for the petty, partisan individuals to be revealed.
If you thought the Republicans were crazy, just wait until this shit hits the fan.
Update: One other thing. I can’t help but think that some of this rage is misdirected anger at the Democrats. The Democrats made two fatal mistakes in constructing Obamacare. First, they put the mandate in as a mandate, not a tax. As a tax on the uninsured, it might have passed the Court. But they wanted to pretend they weren’t raising taxes. They are now trying to retroactively pretend this was a tax hike, but the law says otherwise.
The second mistake, which was really amateur, was not including severability in the law, so that striking down one part would not affect the others. Almost all sweeping legislation is severable precisely to insulate it from the Courts. If the law was severable, striking down the mandate would pin the Republicans in a corner where they either had to support a mandate or face a situation where people could wait until they were sick to get insurance.
You want to talk about partisan hacks, Mr. Krugman? Try a man who blames the other party for the failing of his own.