Weekly Standard: Supreme Court Surprised Liberals

Mar 29, 2012
Originally published on March 29, 2012 7:20 am

Jay Cost is a writer for The Weekly Standard.

This week has really reminded me of Election Day 2004. Liberals, then, were just plain convinced John Kerry was going to be elected president, so much so Bob Shrum actually called Kerry, "Mr. President." The left had convinced itself Bush was unpopular, Kerry had closed the deal, and everything was swinging his way in the final week. So, when the early, unweighted exit polls came up Tuesday afternoon, they were exuberant.


I imagine a lot of liberals felt a similar letdown reading the transcript of Tuesday's arguments on Obamacare. Almost immediately Justices Scalia and Kennedy jump in with tough questions, with the latter quickly getting to the heart of the matter: "Can you create commerce in order to regulate it?"


The Court might very well uphold the law, but it will not nearly be the slamdunk that almost all liberals thought it would be. Why did the left get it so wrong?

It's important to keep in mind that the concept of governmental limits is something that many liberals do not accept, at least not beyond the Bill of Rights (minus the 2nd and 10th Amendments, of course!). For a century, the progressive/liberal attitude has been: we want to make things better, so why are you bothering us with these antiquated notions of enumerated powers and federalism? Or, as Justice Kagan put it today:

The federal government is here saying, we are giving you a boatload of money. There are no — there's no matching funds requirement, there are no extraneous conditions attached to it, it's just a boatload of federal money for you to take and spend on poor people's health care. It doesn't sound coercive to me, I have to tell you.

Of course, not everybody sees things this way. There are a number of people – conservatives -- who raise a skeptical eyebrow whenever a person in a gray suit knocks on the door and says, "I'm from the government and I'm here to help."

The problem for the left is that they do not have a lot of interaction with conservatives, whose intellects are often disparaged, ideas are openly mocked, and intentions regularly questioned. Conservative ideas rarely make it onto the pages of most middle- and high-brow publications of news and opinion the left frequents. So, liberals regularly find themselves surprised when their ideas face pushback.

I think that is exactly what happened with Obamacare. The attitude of President Obama (a former con law lecturer at the University of Chicago, no less!), Nancy Pelosi, and Harry Reid was very much that they are doing big, important things to help the American people, why wouldn't that be constitutional? No less an important Democratic leader as the chairman of the House Judiciary Committee cited the (nonexistent) "good and welfare clause" to justify the mandate.

Having no intellectual sympathy for the conservative criticism of this view, they rarely encountered it on the news programs they watch, the newspapers they read every day, or the journals they peruse over the weekends. Instead, they encountered a steady drumbeat of fellow liberals echoing Kagan's attitude: it's a boatload of money, what the heck is the problem?

Then, insofar as they encountered conservative pushback, they mostly ignored it.

They mostly ignored the cases from the 1990s — namely Morrison and Lopez -- where the Supreme Court put limits on what Congress could do under the Commerce clause. Insofar as they did pay attention to these cases, it was only to insist that they did not apply to Obamacare. They never stopped to think that maybe the lesson of Morrison and Lopez is that the conservatives on the Court took seriously the idea of enumerated (and therefore limited) powers, and so maybe a novel device like an individual mandate would not be a slam dunk for a Court that now has a 5-4 conservative bent.

They also ignored a 2009 report from the Congressional Research Service report that warned:

One could argue... whether a requirement to purchase health insurance is really a regulation of an economic activity or enterprise, if individuals who would be required to purchase health insurance are not, but for this regulation, a part of the health insurance market... This is a novel issue: whether Congress can use its Commerce Clause authority to require a person to buy a good or a service and whether this type of required participation can be considered economic activity.

They also ignored the 11th Circuit Court decision that struck down Obamacare with a carefully constructed, 300-page decision that won the endorsement of a Clinton appointee.

They preferred to cite the 6th Circuit's upholding of the bill, in particular conservative Judge Jeffrey Sutton's concurrence, but they ignored his many exhortations to the Supreme Court to bring some clarity to the Commerce Clause, to set some limits to congressional power (by, for instance, striking down the law) or quit saying there are limits. They did the same when the D.C. Circuit upheld the law, and Judge Laurence Silberman similarly suggested that this was a matter ultimately for the Supreme Court to issue some guidance..

So that is why the left was so surprised. They have no intellectual sympathy for the positions articulated by the conservatives on the Supreme Court. Those opinions rarely if ever make it into their news reports, newspapers, or magazines, and insofar as they were confronted with these contrary views they just ignored them.


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