Potential Judicial Activism in the ObamaCare Hearings : Why We Should Be Worried (Editorial)

Editorial by Amos Gewirtz

In late March, the Supreme Court heard arguments on President Obama’s healthcare reform package. The three-day hearing was historic, both for its length and for its significance. Dubbed “ObamaCare” by its critics, health care reform is a hotly debated, contentious topic among House Republicans and conservatives in general. Accordingly, Republican outreach to garner support for the bill’s repeal has been particularly strong.

On the left, Democrats have alerted us towards the possibility of “judicial activism” pointing out that the court, possessing some particularly outspoken conservative justices, will make a decision not regarding the legality of the law but rather regarding the popularity of it among other conservatives.

In an article published on April 23rd in the Wall Street Journal, David Rivkin Jr. and Lee Casey address the particularly ambiguous term, judicial activism. The authors begin with a fair point: measuring a federal statute against the constitution and finding that is falls short of “constitutionality” is not judicial activism. Unfortunately, this is the only fair point.

It is no secret that measuring a federal statute against the constitution and finding it wanting is not judicial activism. But if Rivkin and Casey believe that the left is actually worried that the court will be doing just this – measuring ObamaCare against the Constitution, then both are mistaken.

In fact, the opposite is true. Democrats are worried that, as founding father Alexander Hamilton put it, the high court will exercise “will instead of judgment.” These worries seem to be well founded. That is, the conservative justices, as they stand today, have made a number of judgments with less than scrupulous judgment.

Look back, for example, to May of 2010. At that time the Supreme Court heard Monsanto v. Geertson Seed Farms, a case that ultimately had an immeasurable effect on the U.S. agricultural industry. Justice Clarence Thomas, despite working as an attorney from 1976–1979 for Monsanto, did not recuse himself.

Now, look further back, to the evening of December 11, 2000, when four years of America’s discourse was decided somewhat hastily—in less than 24 hours—by a group of five conservative justices. The justification for the decision, given in Justice Scalia’s majority opinion, left some to be desired: “Counting the votes would threaten irreparable harm to the petitioner [Bush] and to the country, by casting a cloud upon the legitimacy of the election.”

This is perhaps the best example of judicial activism—a non-legal, uninformed decision, made prominently with party or ideological goals in mind. This is not to say that the Supreme Court’s judgment should not be trusted. And it is not to say that conservatives are the sole culprits, either. However, there is a danger that the conservative court—just as it has done before—will not decide in a truly Marshallian manner. If we had recognized this threat sooner, many of the judicial woes that have discredited the Supreme Court may well have been avoided.

Tags: general interest, opinions, sibleyscribe