Judicial Restraint My Old Lady A$$

Methinks these Justices protest too much.  It’s actually pretty telling too.  Scalia seems to be getting his questions from old Fox News shows and Thomas has once again proven that no questions are necessary when you know exactly how you’re expected to vote to keep the perks pouring in.  It makes one wonder if Roberts is the least bit concerned about how “his” court will go down in history. If comparing the health care market to broccoli is a sign of great intellect, please, buy my a ticket to Palookaville.  Here’s how Charlie Pierce puts it.

It is plain now that Scalia simply doesn’t like the Affordable Care Act on its face. It has nothing to do with “originalism,” or the Commerce Clause, or anything else. He doesn’t think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma. And today, apparently, he ran through every twist and turn in the act’s baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality. (What in hell does the “Cornhusker Kickback” — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that’s the standard.) He’s really just a heckler at this point. If he can’t do any better than that, he’s right. Being on the court is a waste of his time.

Better yet, check out Jonathan Chait’s piece on Conservative Judicial Activists Run Amok.  It reintroduces an essay by Jeffrey Rosen from 2005 on how the court was undergoing some fairly radical changes.  The Rosen essay specifically references a Thomas decision written with an amazing amount of paraphrasing from a libertarian kook named  Richard Epstein who is obsessed with protecting property at all costs; including human ones.

 As Epstein sees it, all individuals have certain inherent rights and liberties, including ”economic” liberties, like the right to property and, more crucially, the right to part with it only voluntarily. These rights are violated any time an individual is deprived of his property without compensation — when it is stolen, for example, but also when it is subjected to governmental regulation that reduces its value or when a government fails to provide greater security in exchange for the property it seizes. In Epstein’s view, these libertarian freedoms are not only defensible as a matter of political philosophy but are also protected by the United States Constitution. Any government that violates them is, by his lights, repressive. One such government, in Epstein’s worldview, is our government. When Epstein gazes across America, he sees a nation in the chains of minimum-wage laws and zoning regulations. His theory calls for the country to be deregulated in a manner not seen since before Franklin D. Roosevelt’s New Deal.

After Thomas joined the Supreme Court, Biden’s warnings seemed prescient. In 1995, echoes of Epstein’s ideas could be clearly heard in one of Thomas’s opinions. By a 5-4 majority in United States v. Lopez, the court struck down a federal law banning guns in school zones, arguing that the law fell outside Congress’s constitutional power to regulate interstate commerce. Lopez was a judicial landmark: it was the first time since the New Deal that the court had limited the power of the federal government on those grounds. Thomas, who sided with the majority, chose to write a separate opinion in which he suggested that even his conservative colleagues had not gone far enough. The real problem, he wrote, was not just with the law at hand but with the larger decision of the court during the New Deal to abandon the judicial doctrines of the 19th century that established severe limits on the government’s power. He assailed his liberal colleagues for characterizing ”the first 150 years of this Court’s case law as a ‘wrong turn.”’ He continued, ”If anything, the ‘wrong turn’ was the Court’s dramatic departure in the 1930’s from a century and a half of precedent.”

Thomas did not cite Epstein directly in his opinion. But to anyone familiar with Epstein’s writings, the similarities were striking. Indeed, Thomas’s argument closely resembled one Epstein had made eight years earlier in ”The Proper Scope of the Commerce Power” in the Virginia Law Review — so closely, in fact, that Sanford Levinson, a liberal law professor at the University of Texas, accused Thomas of outright intellectual theft. (”The ordinary standards governing attribution of sources — the violation of which constitutes plagiarism — seem not to apply in Justice Thomas’s chambers,” Levinson wrote in the Texas Law Review.) Biden’s fear that Epstein’s ideas might be written into law had apparently been realized. And the fear would continue to be realized in other courts throughout the 90’s as a small but energetic set of lower-court judges, sympathetic to libertarian arguments, tried to strike down aspects of the Clean Water Act, the Endangered Species Act and other laws, challenging powers of the federal government that had come to be widely accepted during the second half of the 20th century.

Chait takes this essay into the present and the analysis presents a chilling future of judicial activism unlike anything we’ve seen before.  The hearings this week on the ACA imply a SCOTUS willing to rewrite legislation in the name of ideology.  The so-called swing vote, Justice Kennedy, has created loopholes in cases before that have allowed state legislatures to drive huge right-depriving laws through constitutional rights.  By introducing the factually inaccurate, unscientific idea of “fetal pain” in  Gonzales V Carhart, Kennedy opened a can of whoop ass based on religious propaganda on American Women.

Writing for the majority, Justice Anthony Kennedy said:

“States . . . have an interest in forbidding medical procedures which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus . . . A State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others.”

The National Right to Life Committee thinks that Kennedy’s directive, particularly the bit at the end —”even life which cannot survive without the assistance of others”—leaves open the possibility of revising the viability standard. As Olivia Gans, an NRLC spokesperson, told me a few weeks ago, before the law had passed, “What Kennedy was saying was that states can and should look at other variables to figure out what’s in the best interest of the state.”

This is to medical science as the broccoli argument is to economics.  It’s clear that the justices are venturing into something beyond judging constitutionality.  Consider this thought offered by Chait.

The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators. They are litigating the problem of adverse selection, and doing it very poorly. (Here are health economists Henry Aaron and Kevin Outterson tearing their hair out over the justices’ bungled attempts to describe the economic dynamics at work.)

Scalia himself offers the most blatant case. His famed thunderings against meddlesome judges are nowhere to be found. He is gleefully reversing his previous interpretation of the Commerce Clause, now that it is being deployed against big government liberals rather than pot smokers. He is railing against Obamacare like an angry Fox News-watching grandfather:

In the morning session — in which the court weighed how much of the law should stand if the mandate is ruled unconstitutional — Scalia cited the horsetrading required to pass the bill — including the politically embarrassing, and failed, Cornhusker Kickback. He also admitted that he’d like to see the whole law fall if the mandate is ruled out of bounds.

In the afternoon, he took pains to remind the court of the unpopularity of the individual mandate.

The exchange occurred when Solicitor General Donald Verrilli Jr. rejected a hypothetical that relied on the notion of Congress passing a massive new tax. This, he argued, would have to overcome massive political constraints.

At that point Scalia chimed in: He would’ve thought the individual mandate would also be too much of a political liability to ever pass Congress.

In fact, the “Cornhusker Kickback” was stripped out before the final bill, but Scalia seems not to know that.

Just two years ago, the idea that conservatives might win the health-care fight in Court rather than the Senate seemed absurd. Just seven years ago, the notion that Republican jurisprudence would be defined by aggressive economic judicial activism seemed even more fantastical. But just as there are few atheists in foxholes, there aren’t a lot of justices of any persuasion willing to walk away from a chance to overturn a duly-passed law that they personally detest.

Whatever issue you may have with the ACA, it was passed by an overwhelming number of Senators and Representatives after a year of hearings, testimony, and rewrites. It deserves a fair hearing before something other than a Kangaroo Court.


20 Comments on “Judicial Restraint My Old Lady A$$”

  1. dakinikat says:

    EJ Dionne has also written an op ed in WAPO on this.


    The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.

  2. dakinikat says:

    and if you haven’t read the Dahlia Lithwick piece at Slate that BB’s posted before:


    This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected.

  3. dakinikat says:

    Also, Here’s a Mark Thoma piece that talks about why the market for health care and broccoli aren’t comparable. It has to do with adverse selection, externalities, and free riders.


  4. RalphB says:

    The blatant dishonesty of the Court is despicable. I know Justices can be impeached but can that be done only by Congressional action?

    • dakinikat says:

      yup … House of Representatives and they’re ruled by crazy people at the moment. There’s a movement right now to remove Thomas because of his fundraising improprieties. It can’t go any where as long as the Republicans are in charge. They want this kind of activism.

  5. dakinikat says:

    Robert Scheer at Truth Out


    Now they hide behind the commerce clause of the Constitution to argue that the federal government cannot regulate health care coverage because that violates the sacrosanct principle of states’ rights. If the right-wingers on the high court consistently had a narrow interpretation of federal power over the economy, there would be logic to the position expressed by the Republican justices during the last three days of questioning. Of course, the court’s apparent majority on this has shown no such consistency and has intervened aggressively, as did the justices’ ideological predecessors, to deny the states the power to protect consumers, workers and homeowners against the greed of large corporations.

    We would not be in the midst of the most severe economic meltdown since the Great Depression had the courts not interpreted the commerce clause as protecting powerful national corporations from accountability to state governments. Just look at the difficulty that a coalition of state attorneys general has faced in attempting to hold the largest banks responsible for their avarice in the housing disaster.

    The modern Supreme Court has allowed the federal government to pre-empt the states’ power to protect homeowners, whose mortgage agreements were traditionally a matter of local regulation and registration. The court has no problem accepting Congress’ grant of a legal exemption in the Commodity Futures Modernization Act of 2000 that allows the bundling of home mortgages into unregulated derivatives.

    The court has vitiated the power of the states to control interest rates, even though quite a few had explicit provisions in their constitutions banning usury. The result is that loan-sharking by banks that can claim to be engaged in interstate commerce is constitutionally protected, which is why there are no limits on mortgage, credit card or personal loan interest rates.

  6. RalphB says:

    OT, but if they can indict Haley for tax fraud surely Thomas shouldn’t be walking free.

    Palmetto Public Record: Haley indictment imminent? Stay tuned…

    Two well-placed legal experts have independently told Palmetto Public Record they expect the U.S. Department of Justice to issue an indictment against South Carolina Gov. Nikki Haley on charges of tax fraud as early as this week.

  7. RalphB says:

    America’s bankrupt morality

    It’s not just Wall Street. Every profession from medicine to academia has been corrupted by our money obsession – Thomas Frank


    • peggysue22 says:

      The only thing I disagree with Frank is this–I did not expect nor do I want ‘apologies and resignations.’ The only way this stops is a public perp walk and humiliation. Orange jump suits could do wonders to shock the system out of its fraud mode.

      But we leadership for that to happen. Right now all we have are compromises coming out of DC.

      • RalphB says:

        When the British screw up badly, they have the decency to quit. I would expect that first, before any perp walk, from an honorable person. That they have no shame or honor is a big problem and causes the rest of the criminal behavior.

        Unless they stole from another 1%’er, I don’t remember any 1%’ers being imprisoned in this country since the ’80’s. People from Kleiner, Perkins didn’t go down for their pump and dumps before the internet bubble burst and the bankers haven’t this time. Now they are being played up again by Ratigan, who has a fucking bad case of MBAitis. It those asshats at Enron hadn’t stolen from the wrong people, they’d still be masters of their universe. Why do people think this is a first? History matters.

    • Boo Radly says:

      Bingo – someone finally connected all the dots. Been waiting a long tie to read these words written by someone else

  8. bostonboomer says:

    I’m confused about the praise for Biden for predicting what would happen with Thomas on the court. Biden is largely responsible for that happening, IMO.

  9. NW Luna says:

    Most of this court were in on the infamous Bush v Gore decision in 2000. So normal procedure with them is usually bad for us. “The trouble with normal is it always gets worse…..”

    I ‘bought fell on the floor when the Supremes opined that single payer would be constitutional. Well, Obama didn’t do HCR that way, so I feel we’re going to get screwed again.