Tuesday, July 10, 2012
How foolish does the media look now, after weeks of
demagoguery, now that the Court has issued two huge victories for the Left in
one week? Leftists, you will recall, made outrageous accusations against the
Supreme Court—the institution that, since the 1950’s, more than any other, has
forced godless nihilism upon our country, and then, following stare decisis,
reinforced it—before they even heard these latest cases. Left-wingers like Ezra
Klein accused the Court of politicking for Republicans to get them elected; President
Obama—a constitutional law professor, as we’ve been reminded a zillion times in
the past five years—called striking down a statute “passed with a strong
majority” (read: party-line vote passed on reconciliation) “unprecedented.”
Even after a major victory for the statists, centralizers
such as the New Yorker, E.J. Dionne, the Atlantic and others made ad hominem
attacks on Senior Associate Justice Scalia. His crime? Mentioning the executive
branch’s decision not to enforce immigration laws in the context of a case
about the executive branch not enforcing immigration laws. How dare he! Even
when you lose, you’re not safe if you disagree with leftists.
The thing we conservatives hoped for was to strike down
the decision on the terms on which it was offered: as an extension of the
commerce clause. But that would have provided little legal bulwark against
future government depredations, and would have given untold momentum to
President Obama’s reelection; there would’ve been no end of unsubstantiated,
heated, over-the-top rhetoric about “judicial activism” and “conservative
battering rams.” What Roberts did was, ultimately, much more powerful and—dare
I say it—much more conservative:
By exercising judicial restraint, he set an important
model for the humility the Court should feel in the face of the people’s will
exercised in elections, and their elected officials in Congress. In effect,
though, he has handed back BHO an incoherent mess of sophistry where the
president once thought he had a “signature and historic domestic legislation.”
By labeling the ACA penalty a tax, Roberts re-framed the
issue: ACA is a huge, new burden on the middle-class and is rooted in the most
coercive form of federal power – the power to tax the people directly. If the
American people want federal government healthcare at the price of a huge, new,
direct tax, then we conservatives cannot save them: in a free society, you get
the government that you ask for, and, ultimately, that you deserve. Roberts has
given us the very best ground on which to fight this battle, and he has located
the battle in the appropriate place, the political realm. Would that the
jurists in Roe vs. Wade or Casey v. Planned Parenthood had the same wisdom!
Roberts, by not only striking down the Medicaid expansion
but in getting a 7-2 majority, he has circumscribed ACA at its headwaters (or
strangled it in its crib, if you like) as an overweening, and ‘over-federalized’
mandate on the states. Now the states will retain discretion as to what
services they cover, and the federal government’s assumed power to coerce by
cutting funding is limited. This is a huge step in preserving states’ power
against the federal government, and there are seven justices who agree.
The more I think about what Roberts has done, the more I
like it. It was sophisticated, and it advanced conservatism along several
fronts: judicial restraint, labeling a tax correctly, building a bulwark against
future raids on the commerce clause, and erecting an even higher wall around
Federal abuses of federal-state coercive funding mechanisms. These are all good
things, and they will redound to conservatism’s benefit now and in the future.
Roberts, as a conservative, is well-aware that the next
president will have three Supreme Court appointments to make. Does Roberts want
three more liberals on the Court, or does he want three more conservatives?
Senator Obama, Senator Biden, and Senator Reid all voted against confirming
John Roberts as Chief Justice, while Mitt Romney said that he would appoint
people like John Roberts to the Court: I bet I know who has his vote.
Mitt Romney raised four million dollars in one day
following the ruling. He might want to call our Chief Justice and thank him.
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