So far the larger liberal reckoning hasn’t been as nuanced as the High Court’s, as evidenced by the media mugging of Solicitor General Donald Verrilli. Liberals castigated his performance during oral arguments Tuesday and all but blamed him for any ObamaCare defeat.
Mr. Verrilli may not be Daniel Webster, but he was more than competent. The problem isn’t that he’s a bad lawyer, it’s that he is defending a bad law with the bad arguments that are the best the Administration could muster. Liberal Justices such as Sonia Sotomayor all but begged him to define a limiting principle on the individual mandate and therefore on federal power. He couldn’t—not because he didn’t know someone would ask but because such a principle does not exist.
Greg Sargent says that he’d underestimated the virulence of the “conservative bloc of the Supreme Court”:
Many people have blamed Obama Solicitor General Donald Verrilli’s poor defense of the law for the sudden jeopardy Obamacare finds itself in, and there’s no denying he was unprepared to answer questions that we’ve known for months would be central to the case.
But there’s another explanation for the botched prediction: Simply put, legal observers of all stripes, and Obamacare’s proponents, including those in the administration, badly misjudged, and were too overconfident about, the tone, attitude and approach that the court’s conservative bloc, particularly Justice Scalia, would take towards the administration’s arguments.
E. J. Dionne is upset with the judicial activism of the “conservative bloc” of the Court:
Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?
and bemoans the abandoning of democracy in favor of judicial dictatorship.
Social Security was enacted into law in 1935 with bipartisan support. Medicare and Medicaid came into being 30 years later, also with bipartisan support. The PPACA in contrast was passed on a purely partisan vote. However, its undemocratic nature doesn’t end there. The representative who voted for the PPACA were elected from gerrymandered districts and even in those they were elected by, at best, simple majorities of the minority of registered voters who actually voted. Construing that as democracy is a stretch.
We do not have a democracy or even a narrow majoritarianism but a constitutional order in which, at least in theory, the Congress is constrained by the constitution to act within its enumerated powers. The Court is now deciding if the Congress has done that in the case of the PPACA.
That was the Congress’s choice. It could have elected to avoid the present situation in any number of ways. If you don’t like policies being decided by the Supreme Court, blame the Congress.
Neil Snyder says the same thing a bit more strongly:
The title of Dionne’s piece in today’s Washington Post captured my attention: “Activist judges at the Court”. In a nutshell, he says that conservative justices on the Supreme Court are poised to abandon democracy and in its place substitute a “judicial dictatorship” by striking down Obamacare. Nothing could be further from the truth, and even suggesting that Obamacare was the product of the democratic process is dishonest.
“Legislative overreach” is the term that opponents of Obamacare typically use to describe the problem with the bill. That’s fair as far as it goes, but the process by which Obamacare came into existence wasn’t just legislative overreach. It was thuggery at the highest levels of our government that resembled a form of dictatorship, but it was Democratic Party dictatorship. I’ll go one step further. It was Democratic Party dictatorship where precious few Democrats’ voices were heard. You could even say that Barack Obama, Harry Reid, and Nancy Pelosi gave us Obamacare since no other legislator was even allowed to read the bill before votes were cast. We now know that Obama, Reid, and Pelosi didn’t read the bill either, so in the truest sense, it was totally ignorant Democratic Party dictatorship.