The average American is not a constitutional-law expert. That hasn’t
stopped many from weighing in on how and why the justices of the U.S.
Supreme Court should rule on the fate of the 2010 health-care overhaul
commonly referred to as Obamacare.
Recent polls show that a majority of Americans think the law will be
repealed or personally favor its repeal. This isn’t a big surprise
since, despite the hopes and beliefs of its backers, the law has
remained unpopular since being passed in a hyper-partisan push two
The start of oral arguments last week fired up the armchair pundits —
especially those true believers in the law who reacted, in the words of
one observer, with “shock and awe” at the tough and skeptical questions
posed by several of the justices. Opponents became cautiously hopeful
that the law would be overturned; Obama’s defenders quickly went
through several stages of grief, alternately trying to dismiss, shame
and sweet-talk those justices who seemed to be leaning toward striking
down the law.
Those complaining of a “conservative bias” on the Supreme Court focus
on a few cases that didn’t go their way over the past decade or so.
Meanwhile, they tend to ignore previous decades of activist decisions
by judges who championed the idea of the “living Constitution” which
holds that a very broad view of the Constitution should be used to
justify a progressive agenda. Meanwhile, Justices Elena Kagan, Sonia
Sotomayor, Stephen Breyer and Ruth Bader Ginsburg, all presumed from
the outset to be supporters of the health-care law, almost never are
accused of having a “liberal bias.”
It would be a mistake to accuse justices of being partisan simply on
the basis of them questioning, or ultimately ruling unconstitutional,
central parts of what most recognize as the president’s signature
domestic achievement. To suggest that partisanship is the only reason
one would do this shows how divisive and partisan the health-care law
itself is. There is a legitimate question to be decided here: Does this
law seek to establish an entirely new relationship between Americans
and their national government, one in which the government has far more
power to dictate the activities of individuals?
On the other hand, it also would be unwise to insist that the law be
struck down because it was Obama’s biggest legislative victory. As many
Democrats are quick to point out in their worried blame game, leading
Republican lawmakers over the years also have made attempts at creating
some sort of national health-care system, so it’s not as if the
Democrats and Obama pulled the idea out of thin air.
Now is a time for both sides to respect the fact that the justices of
the Supreme Court are doing their jobs, using their years of
accumulated experience and knowledge of the Constitution to soberly
weigh the issue. To suggest that the nation’s highest court would take
the case in order to score political points on either side is an
example of critics projecting their own hyper-partisan worldview onto
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