I am, by disposition, a glass-half-full kind of guy. I am predisposed by the Manufacturer to see silver linings, upsides and bright spots in dark situations. With that in mind, now that I’ve had a couple of days to process the recent Supreme Court decision on Obamacare, here are a few thoughts.
Certainly conservatives are almost universally dismayed (to put it mildly) that Chief Justice Roberts sided with the liberals on the court in the decision that upheld Obamacare. I am among them.
Nevertheless there is a conservative rational for Roberts’ vote, opinion and calculus. Dr. Charles Krauthammer does a pretty good job of summarizing it here. Powerline’s John Hindraker has a slightly different but still sympathetic view here. I would explain the outcome this way.
There were two conservative principles in play in this case. On one hand, there is the principle of reigning in the runaway growth/power of the national government at the expense of state prerogatives and individual liberty.
On the other hand, we conservatives had long decried activist courts striking down laws legitimately passed by duly elected representatives just because an ideologically hostile court discovered some previously-unknown “penumbra” in the Constitution.
Not long ago the citizens of the State of California voted overwhelmingly to codify the definition of marriage as being between one-man and one-woman–thereby premptively shutting the door to the redefinition of marriage in ways that would include not only gay marriage but bigamy, polyamory, incest and other creative arrangements “between consenting adults who love each other.”
And yet the U.S. Ninth Circuit recently struck down that law on contorted, absurdist, touchy-feely grounds. This is precisely the kind of “judicial activism” conservatives loathe and conservative judges like Roberts have vowed to eschew.
Thus the dilemma. The four right-leaning or libertarian-ish judges viewed the first principle–reigning in the reach of the national government– as being the more compelling of the two principles. Roberts, obviously, picked the other one.
We rightly despise liberal courts’ proclivity to “legislate from the bench.” This is precisely what Roberts’ opinion says he was trying to avoid:
“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”
If only the liberal justices with whom Roberts sided had the same philosophy. How much would you like to wager that the next time a big piece of conservative social legislation comes before the Court, those other four justices encompassed in Roberts’ “we” above will suddenly lose their commitment to judicial restrain and Constitutionality.
Liberals now mindlessly and reflexively tend to view the Supreme Court as a type of super-legislative body that should decide what policies “ought” to be (irrespective of what the Constitution says or doesn’t say) and then rule accordingly.
Hilariously Sadly, after the SCOTUS handed down the Obamacare decision, I saw numerous headlines at news site that actually said, “Court Passes Obamacare“–as if the judges were legislators voting on a bill. Of course, this is precisely how libs view the courts, but the rest of us generally know better.
Frankly, the far-better, healthier-for-the-republic, more-conservative approach for preventing the rolling economic and cultural catastrophe of Obamacare is to elect Romney to the White House and fill Congress with men and women pledged to repeal it. And then legislatively yank the thing out of the law books by the roots.
Indeed this is precisely what Chief Justice Roberts clearly hopes will happen. In his majority opinion he wrote:
It’s not our job to protect the people from the consequences of their political choices.
True enough. In strictly Constitutional terms, if the American people are dull-witted or greedy-for-other-people’s-money enough to put Obama, Pelosi, Reid, Frank, Dodd, Rangel & Co. in charge of the nation–as they did via the elections of ’06 and ’08–it’s not technically the role of the courts to reverse them–provided the legislation passes some generous minimum level of Constitutionality.
Robert’s opinion explicitly states that he found the Affordable Health Care Act cleared that minimum level–but it is hard to read it without concluding that Roberts had to squint, look-crosseyed, and directly repudiate everything Obama and the bill’s backers claimed about it in order to do so.
So that moves the battle for economic freedom to November. Some, though not all, knowledgable political observers think the Court’s decision enhances Romney’s chances. I pray they’re correct.
As I said, I’m an optimistic guy. But if, come November, Republicans don’t take the White House and healthy majorities in both houses of Congress facilitating an immediate reversal of Obamacare and Obama’s toxic blend of nanny-state socialism and Crony Capitalism, it’s going to be tough to keep alive any rational hope for a renewal of freedom and opportunity.
American decline will be baked into the cake. Irreversible. And it’s hard to see a silver lining in that.