Tuesday, March 23, 2010

The Health Care Debate Heads to Court

Go back to my colleague Dawn Johnsen's Senate hearing last year to head the Office of Legal Counsel (a position for which, embarrassingly enough, she is yet to even get an up-and-down vote). At about 1 hour and 11 minutes into the hearing, Senator Sessions volunteered the following:
“I think that Roberts and Alito represent two of the finest exponents of a classical interpretation of law, a classical view of the role of a judge I have ever seen, and it troubles me that you would think that they . . . would be somehow setting about to radically remake the Constitution.”

“I think Justice Alito and Justice Roberts have classical judicial philosophies that would really trouble me if somebody thought they were unfit for the bench, and somehow set about to radically remake the constitution.

“It’s the activists that are remaking the constitution, not the classical judicial jurists.”

Reading these words, the recent Citizens United case might readily come to mind, as clear an exercise in judicial activism as we are likely to see. What that case has to do with a classical judicial philosophy, I cannot say.

I wonder what Senator Sessions thinks of the next step in the health care debate: a call by various state attorney generals, joined by Baker Hostetler as outside counsel, to overturn the legislation in the courts.

I understand the logistics: to lose in Congress is only to lose the first fight in a long and drawn out battle. It is also true that this is not a new development, as just about every major piece of legislation is ultimately challenged in court. Nobody likes to lose, after all, and you only need to find find five justices at the end of the line who agree with you. The Republicans can count votes as well as anybody else.

It is also hard to blame the lawyers. As they pointed out, to work in this particular case is "enormously gratifying and intellectually rewarding," and the law firm will only charge a "substantially reduced" rate.

I get all that. What I don't get is the unchallenged assertion that "conservative" justices are paragons of judicial moderation, classical jurists who interpret law, not make it, while the "liberals" are the judicial activists, hell-bent in their desire to radically remake the Constitution.

That so many people believe such a lie, and that a sitting U.S. Senator can tell it publicly, is one of the great conservative triumphs of this generation. Conservative jurists can strike down any piece of legislation they want, from the Religious Freedom Restoration Act to gun control legislation and campaign finance laws, and rather than scorn, Senator Sessions welcomes it as exercises in judicial restraint and classical jurisprudence (whatever that means).

The health care debate is only the latest installment in this ongoing narrative. Republicans fought the good fight, yet ultimately lost. It happens. Rather than prepare for the next fight, however, they are preparing to go to court. Their arguments are not novel: Congress lacks power to require individuals to buy health insurance; penalizing those who fail to buy insurance violates the tax-apportionment clause of the U.S. Constitution; and the legislation grants the U.S. government new powers in violation of the 10th Amendment. But that is hardly the point.

This is a canard, plain and simple. Conservatives, no more and no less than liberals, are judicial activists, and Justices Scalia and Thomas are just as intent in "radically remaking the Constitution" as Justices Marshall and Brennan. The moment we come to recognize this, the better off we will all be. For one, the judicial confirmation process would improve immeasurably.

But I am not holding my breath.