The Wall Street Journal’s editorial today takes Democrats and their friends in the media to task for their attempts to intimidate the Supreme Court and Chief Justice John Roberts before they rule on Obamacare. According to the article, Senator Patrick Leahy (D-VT) went so far as to send a warning from the Senate floor, telling the Justices to essentially know their place. Of course, the Democrats are also getting help from the media.
The elite liberal press has followed with pointed warnings that Mr. Roberts has a choice—either uphold ObamaCare, or be portrayed a radical who wants to repeal the New Deal and a century of precedent. This attack is itself clearly partisan, but it’s worth rehearsing the arguments to show how truly flawed they are.
How flawed are they? Very.
The first fallacy is defining judicial activism as overturning a Congressional law. Since Marbury v. Madison established judicial review in 1803, the High Court has overturned hundreds of laws in part or whole. The real measure of activism is whether the Court’s reasoning is rooted in Constitutional principle. If it is, the Court is not activist but is adhering to the highest legal principles.
Regarding the Affordable Care Act, we’d argue that upholding the individual mandate to buy health insurance requires far more judicial activism. That’s because if the Court finds this federal mandate to be Constitutional, it will have no principle on which to limit future purchase mandates.
Once health insurance can be mandated, Congress will inevitably find that other products or services are equally essential to national well-being. Future Courts will either have to find all such purchase mandates to be legal, in which case there is no limiting principle, or they will have to pick and choose, which means an endless exercise in policy-making.
Read the whole thing. I doubt Roberts, or the other Justices, will be swayed by this progressive drivel, but it’s still worth noting.
Update: There’s more on the “non-legal” arguments in support of the Obamacare mandate at The Volokh Conspiracy.
Update: Linked by Heritage Action – thanks!