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
Of course they are going to strike it down, and Obama is right and within his right to make it as painful as possible for the justices. Next up: Justice Scalia deciding that, lo! Native americans don’t have religious freedom, but catholics do.
Obama should shove their own opinions and precedents down the justices throats until they choke on them. And why even smear Kagan by bringing up and automatically dismissing theoretical charges that she’s leaking info. Obama is marking his territory. He doesn’t need Kagan to do that.
Typo:
objectivity = objectivists
I am waiting for the objectivity to respond to my note about being on the ethics committee of the hospital and the insurance company memo. I wish I could remember for sure which insurance company it was. I think I do, but not certain enough to risk naming the wrong company on this widely read blog.
Ennyhoo, I am wondering what the objectivists have to say about ICU stays lasting longer than five days being shitcanned by the insurance company because a mere 17% survival rate is not economical.
Gene,
It’s part of my never-ending audition for a mespo internship 😉
The Rafflaw statement at 8:18pm is not the real rafflaw!
Nice find with the synopsis there, Blouise. Very concise.
“That may be the way it’s always been as I’m told by a reliable historian that John Marshall had the decision in Marbury v. Madison written before the case was ever filed in his court.” (mespo)
“Those who cannot remember the past are condemned to repeat it.” … or variations thereof (Santayana, Socrates, Plato, Aristotle, Burke)
By the way, for those interested in mespo’s reference to Marshall’s decision in Marbury v. Madison, here’s a lovely, synopsis that includes the politics in play at the time. Depending on your present point of view; read it and smile, or read it and weep::
http://www.ucumberlands.edu/academics/history/files/vol9/MeganNichols97.html
Bron,
“That you fail to understand simple concepts isnt surprising.”
Maybe you can expand on why this full quote of yours directed to me isn’t surprising? Do you have me pigeonholed due to my disgust of your comments, or is it an inability to find consistency in your own thought process?
What is sauce for a goose is cyanide for a gander. If the taxpayer money can not go to pay for medical care for a class of citizens then no special class should get taxpayer medical care. So start with ScaliaCare. The Justices all have free medical care. On my dime. Such hypocrites and they took a hypocratic oath.
Bron,
“If you have 20 hamburger places in a town, I bet you can find a dam fine hamburger at a very good price. Do you think it matters if it is burgers or bypass surgery?”
I certainly see the differnce between ground beef and bypass surgery. To follow your though process would you let a McDonalds employee operate on your heart?
Jeez, Bron. Give up your invalid comparisons.
I forgot to mention that while Justice Scalia hasn’t read the entire bill, I’m sure not every member of congress who voted for it has, either.
I’m so glad you’re safe, Swarthmore!
Fallacy of simple causation and false equivalence. Not all problems are simple. Not all goods and service are equivalent in either utility or value.
Simple doesn’t equate with correct either. Not all problems are simple. Occam’s Razor isn’t an admonishment to use simple solutions. It’s an admonishment to use the simplest solution possible given the parameters of the problem. I use complexity because the world is often a complex place, Bron. You use simplicity because it is all you are capable of processing. It’s okay. It’s not your fault that your anterior cingulate cortex, that area of the brain that monitors uncertainty and conflicts and thus helps manage complexity, is comparatively smaller while your amygdala, that area of the brain that causes you to react with disgust and greater aggression to perceived threats, is comparatively larger. People tend to fear what they don’t understand. You’re just not a very good problem solver in the face of complexity and uncertainty. Why? Because you don’t understand it. But again, that’s okay. All men are created equal, but not all men are equally created. Speaking of which . . .
As far as ignorance and intellectual insufficiency go?
Why don’t you get back to me when you’ve bested anyone here in an argument.
Oh. That’s right. You’re not here to win others to your positions or ideas.
Why is it that you come here again?
Hmmmmm. The smell of over sized amygdala.
Bron,
“I use simple concepts so people like you will understand. But I see even simple ideas like burgers and lasik are beyond your level of understanding or comprehension.”
You use simple concepts because that is all you are capable of, Bron. Don’t presume my understanding nor comprehension is not capable of reading what you wrote.
“You are the one who has no compassion for people. You want them to live in squalor, I think they deserve better.”
You’re right, Bron! I am blinded by the sudden epiphany induced by your keen insight of hamburgers and Lasik and must reassess my beliefs.
Your words made me realize that my compassion for people is an illusion driven by a sick desire to see them all live in squalor while I sail away into the sunset. Let them eat $1.00 hamburgers with no squinting while reading the menus of succulent choices!!
You should maybe think about publishing a modern Dr. Suess series of books, your first title might be: “Green Eggs – Get Used To It,” followed up by, “The Cat – Out Of The Bag.” I’m sure the state of Arizona would buy them.
Correction: Today you can buy a computer with 6gb of ram and a 1 terabyte hard drive for $700. From $5,000 to $700 in 23 years and 40 megabytes to 1 terabyte. When an industry is free to compete, the price comes down and the quality goes up. Pretty simple stuff, no complexity at all.
Maybe that is why all you geniooses dont understand, it is just too simple.
Gene H:
by what means do you make a living…since you seem to have a problem with people charging what the market will bear.
Those computer nerds really “gouged” the market. That is what greed does, it provides good service at a good price.
Thank God for that “greedy prick” Steve Jobs.
Gene H:
you use complexity to hide your ignorance and intellectual insufficiency.
Gene H:
If you really understand something you can explain it in very few words.
F = ma for example. That is what my work consists of, I resist the force of gravity and a few other forces but that equation also applies to wind and seismic events.
That is pretty much what it boils down to.
If you have 20 hamburger places in a town, I bet you can find a dam fine hamburger at a very good price. Do you think it matters if it is burgers or bypass surgery? There is not much competition in health care now days.
DonS,
I’ve had that discussion with Canadians. You’re right. It is very depressing.
You use simple concepts (poorly I might add) because you’re incapable of complex thought or understanding complexity in general, Bron. Your propensity for being crippled by black and white/binary thinking is one of your trademarks. Your choice of concepts in this case – your blind faith in free markets – is based upon a religious belief in both Objectivism and Objectivist’s pseudo-economic non-scientific political polemic of choice, the champions of laissez-faire capitalism, the Austrian School. Selfish people looking for a rationalization for their greed.
Free markets are not the magical solution for every problem. Free markets are not the only tool in the economic toolbox. Different tools work better for different jobs.
I know that’s hard for you to understand, but do try to keep up.
Gene H:
if you do away with regulations restricting competition in the health care industry that will take care of itself. People will gravitate to the company which offers the best service.
gbk:
I use simple concepts so people like you will understand. But I see even simple ideas like burgers and lasik are beyond your level of understanding or comprehension.
It is quite simple, competition lowers price and increases quality in any industry operating in a free market.
That you fail to understand simple concepts isnt surprising.
You are the one who has no compassion for people. You want them to live in squalor, I think they deserve better.