A chastened President Obama slightly walked back his inaccurate and stinging attack on the court, saying that he was really referring to the commerce clause when he said overturning Obamacare would be “unprecedented”:
[T]he point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.
Obviously, the president was not making that point on Monday — not even close. And Attorney General Eric Holder, affirming that he would comply with the 5th Circuit’s order, reiterated the Supreme Court’s power of judicial review. “We respect the decisions made by the courts since Marbury v. Madison,” Holder said Wednesday, referring to the landmark case that established the precedent of judicial review by the Supreme Court. “Courts have final say,” he added.
While Judge Smith’s order may have caused the administration to retreat for the moment, no such deference is being shown by the president’s allies on the left. A weird kind of hysteria has gripped the liberal commentariat as pundits try to outdo one another in exaggerated rhetoric and apocalyptic warnings about the “unelected people” on the court as Obama called the justices.
Topping the list of hysterics is laws professor David Dow, writing in The Daily Beast, who is calling for the “impeachment” of the Roberts court if Obamacare is struck down. Dow accuses the court of carrying out a “sustained effort” to “return the country to the Gilded Age.” He says of the arguments conservatives are using against Obamacare, “You don’t have to pull the analytical thread of that reasoning very hard to see that it boils down to an argument for allowing the poor to die.” One almost expected Dow to call for the use of the guillotine on the court’s conservatives by the end of his hyperbolic rant.
Not to be outdone, Maureen Dowd of the New York Times claims that the court “has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.”
But the biggest outcry from the left echoed the president’s assertion that the court would be engaged in “judicial activism” if it overturned Obamacare. E.J. Dionne noted “a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.”
As mentioned above, it is wondrous logic indeed that posits the notion that when the Supreme Court performs the task that constitutionally, historically, and traditionally it has carried out with regards to the constitutional efficacy of any particular law that it is somehow “unprecedented” or evidence of unnecessary activism. And all of this ranting about “justice” and “social progress” shows a determined ignorance about the one salient point never mentioned on the left: that Obamacare is not the only remedy to our health care problems, that it is a bad law whose unintended consequences are just starting to be felt. To believe that the end of Obamacare would be the end of health insurance reform is nonsense.
What might be the result of this concerted attack on the legitimacy of the court? The justices are not immune to this kind of pressure. It is said that the justices read the morning papers like everyone else. And they also read the polls. While it is a comforting notion that the Supreme Court is above the sort of partisan warfare that is going on in Washington now, the facts are a little more prosaic. Each justice, liberal and conservative, has their legal views shaped by their experiences, their knowledge of the law, and yes, their prejudices and biases.
But the left’s unprecedented attack on the court’s legitimacy is a pre-emptive strike designed to both create the conditions for political warfare against the court and conservatives during the fall campaign, and to intimidate swing votes like Justice Kennedy. We won’t know until late June when a decision on Obamacare is expected whether the president and his hard left allies were successful.
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