Yesterday, President Barack Obama made the surprising prediction that the Supreme Court would uphold the health care law and further labeled those who would vote against it as judicial activists. I am not sure what he is basing his prediction on, but the comment on judicial activism is both unfounded and unwise.
With most observers saying that five justices, including Justice Anthony Kennedy, appeared to be opposed to the law on federalism grounds, the prediction of victory lead some to allege “insider information.” Fingers were pointed at Justice Kagan who some (including myself) felt should have recused herself because she was Obama’s Solicitor General at the start of litigation to defend the act and received emails on that effort. However, there is no basis to make such an accusation against Kagan who I believe would not commit such an egregiously unethical act in telling Administration officials what the initial vote was in the conference last Friday. Obama may simply be engaging in hopeful thinking (it is after the Administration that ran on “Hope”) or his continuing belief that the cases favor the Administration. It also seemed to set up his next (and much more disturbing statement) on judicial activism.
Obama stated that:
“Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress . . . And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”
Of course, all acts found to be unconstitutional were generally the product of democratic process. The point of an independent judiciary is to serve as a bulwark against abuses by the majority. Obama’s statement about judicial activism is equally wrong. There are good faith arguments on both sides of this question and one does not have to be a judicial activist to vote to strike down the law on federalism grounds. I support national health care but raised the same federalism concern before Congress passed the law. I do believe that the law violates federalism guarantees while I respect my friends with opposing views. It is simply unfair to characterize a vote against the law in advance as judicial activism — a term that is often used by people whenever a court rules against their view of the law. To put it simply, it was a cheap shot and beneath a president.
Moreover, it was unwise at this time. This comment is not going to appeal to any of the justices, particularly not Justice Kennedy. The Administration needs Kennedy’s vote and he previously voted to strike down two federal laws on the federalism grounds — the very judicial activism described by the President. Additionally, the Administration is trying to convince Chief Justice Roberts and Justice Scalia to moderate aspects of any ruling. They are likely to view this comment as directed at them. Roberts was ticked by Obama’s statement during his State of the Union address where he criticized the Court. While I felt Roberts failed to condemn the actions of Justice Alito at that address and felt that Alito’s actions were far more problematic, Roberts felt the President was irresponsible. Now, he is condemning any vote against the law in advance as activism. Even if Roberts and Scalia (or Kennedy) were inclined to vote against the individual mandate, they may be on the fence on questions like severability.
The message can easily be taken by justices as a threat that, if you vote against my law, I will denounce you publicly as judicial activists. I realize that this is an election year, but I believe a president should transcend such petty attacks. In this case, it is not just petty but inimical to the Administration’s case.
Source: Yahoo
I think with the appearance of corruption from Ginny Thomas’ partisan group, Alito and Thomas Headlined Political Fundraisers organized by Charles Koch to coordinate political strategy, chaired By Leading Right-Wing Donor Paul Singer
And;
Scalia and Thomas dine with healthcare law challengers as court takes case
November 14, 2011|By James Oliphant
The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.
The Court is already so tainted, they should not have agreed to hear the case.
I do not believe there is any importance in SCOTUS credibility. It is like the US Congress, in the sense that it makes no difference when their approval rating and credibility and trust scores are in the low single digits. The Congress has the power and passes the law and it gets enforced. The SCOTUS decisions are enforced, good or bad, credible or not. The SCOTUS does not rely upon likability, credibility, or approval ratings; once in office they are unaccountable to anybody, short of committing an actual crime and being impeached; but no judicial decision they make can constitute a crime. So they have the power. Period.
SwM
SwM “..The republicans have adopted Paul Ryan’s views on healthcare.”
Tacticsise, it is like war: Don’t signal a retreat. Let the enemy feel we will continue to advance, particularly before an important battle.
The policy declaration that Ryan’s budget would be campaign plank follows that tactic.
@Idealist: If the mandate is struck down, the Republicans will claim victory, but tenuous victory — They will say they need donations to help them prevent something like the mandate from coming back. They will say, Donate now! Donate often! Socialism is on your door step!
Democrats will be happy to help their Republican colleagues, by telling their voters they have a solution to save Health Care that can pass Constitutional muster, but they need your support. So Donate now! Donate often! Elect Democrats or the Republicans will leave you to die in ditch!
I think you can read something, see where your bias enters, and then out it aside so you can read it and think it out with clear eyes and mind (as a dem I can hear what my conservative friend says and sometimes can agree with her when I have left my ideology at the door so we can have our discussion.
SW, just got turned down for my medicare supplemental. “You have a brain implant (for chronic pain), your pre existiing condition has caused us to refuse you.” Mutual of Omaha, funny thing is, if you look at my record I have no other (thank G-d) disorders or diseases and am actually a very low risk to the ins com. They would have made money on me.
GeneH
You know the importance of SCOTUS credibility.
Can you agree that electionwise, healthcare is the more important issue there?
SwM,
To your points,
I chose júst the gasoline market as an example, because it is an oligopoly which has predated Obamacare, just as health insurance has. They function alike, even international ones. OPEC, for example.
Paul Ryan’s position as revealed by the shadow budget is frightening.
It’s said to be a repeat of last year. He aims at far more than ACA, as you well know.
But issues are like battles, they are best met at the right time. to be won.
2011 was not an election year.
http://www.bing.com/videos/watch/video/partisan-rulings-could-put-supreme-court-on-trial-in-2012/65yeimi?from=
idealist, The republicans have adopted Paul Ryan’s views on healthcare.
@leejcarol: When it is repeatedly 5-4 you have to think it is political persuasion and leanings and not reasoned legal thought.
At this level, reasoned legal thought is based on leanings, the whole point of the SC is that the dispute could not be addressed in a lower court. Everything the Supremes do is based on their personal interpretations of the Constitution, and if it were perfectly clear what the “right” interpretation was, it would not have gotten to them: The lower court would have done the perfectly clear thing, and the Supremes could have recognized the perfectly clear thing and refused the appeal.
They have no choice but to rely upon their intuition and leanings in figuring out whether or not the Constitution permits the law as passed.
Isn’t that what we do, when reading it? We have to; there is nothing explicit in the Constitution either permitting or prohibiting the mandate. Whether or not we (or the Justices) think it is Constitutional relies upon our inferences, which follow from beliefs about what was meant, and those beliefs are not universally held. Or the case wouldn’t be in the SC in the first place.
idealist, There are only a few major health insurance companies left in the US.. Premiums go up every year and so do the deductibles. It has had nothing to do with Obamacare.
SwM
I agree even more than you know about the 35 million—-and know very well that you support them.
A retained mandate, or perhaps even w/o a mandate, the law does good, including the womens’ guaranteed care previously lacking.
I think actually even the Dems would be glad whichever way it falls. Their political issue remains theirs to use. Only the Repubs would lose if mandate falls, but they could put the pressure on the insurance companies—-you did not do enough to help us.
And what rc said.
As I said before, more is at stake here than just ACA.
SCOTUS’ credibility is on the line as well.
idealist, People with pre-existng conditions will be as mad as women are at the GOP if the whole thing is struck down on a 5-4 vote. Also,the 2.5 million young people will be thrown off the rolls immediately. They will finally get how political this court is.
SwM
I’m not saying we will. I’m saying that they won’t exchange a sure thing for 4 years of more hassle—the time needed to get what they have with the mandate. Corporatists love sure deals. Just like CDs were for those who knew the game to get OT.
More: Health insurance is like the gasoline market. They pretend competition while forcing up the prices.
I loved that he said it. If judicial “liberal” activism is a bad thing according to conservatves, so it is with conservative justices being activists. One cannot look at Citizens United and deny the activism. Conservatives deserve to be slapped repeatedly with their own hypocricy.
Tony C.
It becomes a “money” question most if they strike it and the law as well.
He wins most if he loses.
So, is he trying to provoke a max win fo himself.
Your distraction factor I had missed. Too many issues now, but loss of ACA would give a center for all, including the unemployed or those who feel the threat.
idealist, We won’t get single payer. We will get nothing. If something did pass in 10 or twenty years, what would prevent the courts from striking it down again? What happens to the 35 million people that are affected by this bill?
Tony C.
You got it. Good analysis.