Lying in the Bed We’ve Made

Conor Friedersdorf has a hard time taking seriously many commentators who complain a decision striking down the individual mandate would be an unprecedented exercise of “judicial activism.”

 I don’t doubt that movement liberals will be upset if the individual mandate is struck down. But what exactly would the reaction against such a decision look like? President Obama’s recent remarks notwithstanding, it isn’t as if the left wants a Supreme Court that consistently respects legislative majorities. The iconic decisions of The Warren Court, Roe vs. Wade, and efforts to extend marriage rights to gays are all premised on the notion that striking down popular laws is sometimes a worthy enterprise. Nor is the left going to champion fidelity to the text of the Constitution as it was understood at the time of the country’s Founding. And as Lawrence v. Texas shows, liberals are comfortable celebrating when longstanding precedents are overturned (after strategic hunts by ideologically-driven activists for the perfect case).

Thus the unavoidably tricky position in which Affordable Care Act defenders find themselves: liberal justices are going to keep “discovering rights” and expanding certain liberties in the future, rejecting originalism, the judgment of legislatures and at times even longstanding precedent. They’ll keep advancing the idea that ours is a living constitution that adapts with the times. And those commitments undermine complaints they make about conservative justices discovering rights, expanding economic liberties, overruling legislators, and overturning precedents.

“We’re okay with those things, but you’ve always claimed to be against them” is enough to demonstrate hypocrisy; but it’s a little much for Obamacare defenders to start claiming that the conservative justices are party to “a conservative Coup d’Etat,” as my colleague James Fallow’s correspondent put it. If the unnamed reader wasn’t identified as being from Holland I’d half-suspect it was Newt Gingrich back with more hyperbolic rhetoric intended to undermine the judiciary.

[And, incidentally, Friedersdorf believes “the individual mandate is superior as policy to whatever alternative we’ll likely get if it’s struck down.”]

As VC readers know, I don’t believe the Court needs to overturn any existing federalism precedent to hold the individual mandate unconstitutional, just as the Court did not need to do any such thing to reach its decisions in New York, Printz, or Lopez.  I would certainly be happy if the Court curtailed or overturned some commerce clause precedents, such as Raich, but I don’t think it’s necessary.  But it’s particularly amusing to see those who have no problem courts overturning precedent, voiding legislative enactments or dramatically altering (if not inventing ) constitutional doctrine complain that the court might do so again here.  If it was acceptable for the Commerce Clause to be “tortured beyond recognition” — to be made more flexible than “Stretch Armstrong” — in order to achieve socially desirable results, it’s hard to see how it is suddenly  unacceptable for the Court to (re)discover modest limits on the scope of federal power.  But of course I would feel this way, as I’ve yet to learn that ‘judicial activism” is just a handy phrase to describe court opinions you don’t like.

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