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.

Are the Democrats Winning on Healthcare?

I have no idea whether the President has been listening more to Rahm Emmanuel or not, but whoever is devising the White House's new healthcare strategy deserves a raise.  There was no doubt that not too long ago, the White House was getting killed by the healthcare question.  But the tide appears to be turning.

The Courts to the Rescue?

Anybody else find it amusing (ironic?) how conservatives are quick to castigate courts for their activist ways, yet just as quick to enlist these very courts when it suits their purposes? In case any further proof was needed, here is yet another example, and a surprising one at that: the health care bill.



According to the Florida's attorney general, William McCollum, the personal mandate to buy health insurance in the bill is “an affront to our country’s principles.” As for the fine for those who refuse to buy insurance, he deems it illegal, because it is not connected to any commercial act.

The a Republican who is running for governor in 2010, said that the so-called mandate was He added that the fine might be illegal because, in his view, it is disconnected from a commercial act. In his view, it is “a tax on people or a penalty on those who don’t do anything.”

The Heritage Foundation similarly wishes the courts to save us from ourselves. According to a recent memorandum, the mandate is "unprecedented and unconstitutional," beyond the powers of Congress under the Commerce Clause as well as an unconstitutional tax under Article I, section 8.

It would be easy to engage this debate on the merits, and many already have. But the larger point is far more important. The debate over judicial activism and restraint is often portrayed as a debate between liberals and conservatives over the soul of American democracy. Reality is far from that. We are all activists now, and the only question for the future is whose policy views will the courts accept.

That these debates are carried on in major media outlets and the hypocrisy of the conservative position is not highlighted by anybody is, in and of itself, a triumph of the conservative movement.