This morning Scott Galupo pointed out some liberal commentators who had resigned themselves to an adverse Supreme Court ruling on the individual mandate. The more high-strung James Fallows and Michael Tomasky were really hoping for a ruling today too, but it appears they haven’t moved past the anger stage of the grief cycle yet. In anticipation, Fallows primed the pump with shibboleths about the cooptation of the court by conservative ideologues, referring to the takeover in his post’s original headline as a “coup.”
He changed it, saying the use of the word in the head “implies things I don’t mean.” But moderation isn’t really the style of The Daily Beast’s Tomasky, who repeated the language in a headline of his own. Tomasky has also said Democrats should “make the Supreme Court an issue this fall in a way that might even persuade some swing voters that the court overstepped its bounds”:
This group [conservatives] represents no more than 30 to 35 percent of the population on most issues. On some, more. On the individual mandate, more, though that only after telling people the usual smorsgasbord of lies, while most conservative legal scholars were quietly acknowledging that it was clearly constitutional.
This coup has been, and is, procedurally legal; no one took over the radio station by armed force or came down from the hills in fatigues. But interestingly enough, where the law didn’t suit them, they took care to put in place people who would bend the law to their liking.
God help us! Those crazy conservatives want to take over the court then constitutionally limit the exercise of government power!
Jonathan Adler provides a much-needed corrective to the myth of the runaway SCOTUS:
The problem with these characterizations of the court is that if by “judicial activism” one means a willingness to overturn precedents and invalidate federal laws, the Roberts Court is the least activist court of the post-war period. As a recent NYT analysis showed, thus far the Roberts Court has overturned prior precedents and invalidates federal at a significantly lower rate than its predecessors. Further, many of the Court’s most “activist” decisions, so-defined, have moved the law in a more liberal direction (see, e.g., Boumediene, Kennedy v.Louisiana) or were broadly supported First Amendment decisions (e.g. Stevens).
Striking down the ACA would place new limits on the commerce clause, but to call that activism is to ignore nearly a hundred years of the court broadening it.