The New York Times is very afraid of a court that cares about the Constitution:
If the conservatives decide that they can sidestep the Constitution to negate Congress’s choices on crucial national policies, the court’s legitimacy — and the millions of Americans who don’t have insurance — will pay a very heavy price. Chief Justice Roberts has the opportunity to avoid this disastrous outcome by forging even a narrow ruling to uphold the mandate and the rest of the law. A split court striking down the act will be declaring itself virtually unfettered by the law.
The conservatives want to “sidestep the Constitution”? Really? And if they rule (correctly) that the Ninth and Tenth Amendments are not trumped by a Commerce Clause of unlimited scope, and that the powers of the federal government remain enumerated, they are “declaring themselves unfettered by the law”?
Can I acquaint the Gray Lady’s editorial board with a minor decision from a couple centuries ago called Marbury v. Madison?
[Update a while later]
The Left’s meltdown over the Constitution:
Judicial activism is not something that happens every time the Supreme Court overturns a statute. The Justices owe deference to Congress and the executive, but only to the extent that the political branches stay within the boundaries of the Constitution. Improper activism is when the Court itself strays beyond the founding document to find new rights or enhance its own authority without proper constitutional grounding.
The classic example, acknowledged by good liberals like Alexander Bickel and Archibald Cox at the time, is Roe v. Wade in 1973. The High Court discovered a right to abortion rooted in a right to privacy that it had invented in Griswold in 1965 from the Constitution’s “penumbras” and “emanations.” Roe overturned 50 state laws and pre-empted a healthy debate that would have reached a different abortion consensus in different states. Our cultural politics has been polarized ever since.
The ObamaCare case is very different, as the oral arguments made clear. The Court is debating the reach of the Commerce Clause and of its own precedents in considering the limited and enumerated federal powers that are explicit in Article I, Section 8.
The Court has often overturned laws that exceeded those powers, including laws that it said exceeded the authority of the Commerce Clause (Lopez in 1995, for example, and Morrison in 2000). Hundreds of other precedents have extolled the value of the constitution’s “dual sovereignty” system—the division of state and federal power. As recently as the U.S. v. Bond case last year, Justice Kennedy wrote that “federalism protects the liberty of the individual from arbitrary power.”
But if they rule in favor of the Constitution, they’ll be demonized nonetheless.
[Update a while later]
So, a majority of the public wants it overturned, and expects it to be overturned. And somehow the court will “lose its legitimacy” by following the Constitution, and overturning it? When it won’t even affect stare decisis?
Dream on, Left.