Supreme Court

How ObamaCare Is Exposing Conservative vs. Libertarian Divisions on the Supreme Court

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One week from today the U.S. Supreme Court will begin hearing oral arguments on the constitutionality of the Patient Protection and Affordable Care Act, including whether or not the law's individual mandate requiring every American to buy or secure health insurance violates Congress' power "to regulate commerce…among the several states." Writing in today's Los Angeles Times, David Savage makes a point about the case that's similar to something I've been arguing for the past few years: Namely, the longstanding division between libertarian and conservative schools of legal thought is going to play a central role in the outcome of the health care challenge. Here's Savage:

The [legal] issue also poses a dilemma for the court's conservative majority: Just what type of conservative are they? Do they seek to reimpose conservative principles on the two elected branches of government or do they hew to the idea of a limited, restrained role for the courts?

At The Huffington Post, Mike Sacks makes a parallel argument:

The battle this time is likely to be an intra-conservative conflict between the economic libertarianism underlying the mandate's challenge and the traditional principles of judicial restraint that have defined right-wing jurisprudence for more than a half-century.

The idea that judges should defer to the will of lawmakers runs deep among conservative legal activists. Consider the June 2011 opinion by 6th Circuit Judge Jeffrey Sutton upholding the constitutionality of the individual mandate. Nobody's idea of a liberal, Sutton is a former clerk to Justice Antonin Scalia and a very well-respected figure in Federalist Society circles. And in Sutton's view, opponents of Obama's health care overhaul should be taking their complaints to the ballot box, not to the court house. "Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation," Sutton wrote, "allowing the peoples' political representatives, rather than their judges, to have the primary say over its utility."

Now contrast those words with the 11th Circuit's August 2011 decision striking down the individual mandate. As that court declared, "When Congress oversteps [the Commerce Clause's] outer limits, the Constitution requires judicial engagement, not judicial abdication." That's the libertarian-conservative legal divide in a nutshell: judicial engagement vs. judicial deference. The fate of the individual mandate depends on which side of that divide holds sway over the Supreme Court's conservative bloc.

NEXT: Ten Years of "If You See Something, Say Something"

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  1. If not to stop overzealous legislatures from spilling the banks of Constitutional restraints, what good is the Supreme Court?

    1. If not to stop overzealous legislatures from spilling the banks of Constitutional restraints, what good is the Supreme Court?

      To rubber stamp the acts of overzealous legislatures and allow the spilling over the banks of Constitutional restraints!

  2. OT

    “As many as 450 million rounds of .40-caliber (hollowpoint) ammunition are being produced for U.S. government agencies by ATK of Minnesota.”

    http://moonbattery.com/?p=9437

    For those gunshy types, “hollowpoint” is when you want the bullet to make a big hole rather then zip right through humans.

    1. We hear you, bro!

    2. Why is this interesting or relevant to anything? I already knew that the government buys lots of ammo.

    3. More oddly, why .40? Do the feds use .40 in significant quantities?

      1. I think a lot of the local yokels do.

      2. I think a lot of cops carry Glock .40s. 9mm just isn’t cool enough any more.

      3. I think almost all Fed law enforcement agencies have gone to either .40 or 10mm. Most of the locals followed their lead.

        1. Thought that .357 Sig was the trendy caliber for the Feds? Maybe just the Secret Service?

          Regardless, ATK is probably an extremely happy contractor after that order.

  3. Is anybody else’s anus bleeding?

  4. I don’t follow this at all. I never understood “defer to the legislature” to mean “don’t enforce the Constitution as written”. The issue is whether the court reads things into the Constitution that clearly are not there. I don’t see a conflict here at all. Either the Feds have the power to do this or they don’t. If they don’t, there is nothing activist about striking down the law.

    1. I never understood “defer to the legislature” to mean “don’t enforce the Constitution as written”.

      That is exactly what it means.

      It switches the burden of proof.

      Now, instead of the courts judging the legislation against the Constitution, their job is to assume the legislature is correct and to defend the legislation from those with the temerity to squeak about the Constitution.

      1. Excellent analysis. Never thought about it that way, but that’s exactly the issue.

      2. All well and good until you realize constitutions are just legislation too.

        1. …except that the Constitution has Supremacy over statutory legislation…

          …and except that making amendments to the Constitution is way more difficult than passing a statute…

  5. Is anybody else’s anus bleeding?

  6. I don’t follow this at all. I never understood “defer to the legislature” to mean “don’t enforce the Constitution as written”. The issue is whether the court reads things into the Constitution that clearly are not there. I don’t see a conflict here at all. Either the Feds have the power to do this or they don’t. If they don’t, there is nothing activist about striking down the law.

    1. Unlike, say, the United Kingdom, we have a written constitution. By its own terms, there’s nothing that prevents a court from tossing out precedent (which is merely caselaw, and therefore inferior to the Constitution itself) and going back to the foundational document.

      Not suggesting that should be done casually, but it’s not illegal or a violation of the Constitution for the Supreme Court to do that.

      1. And it is not activist, if you take activist to mean expanding the role of the courts. For the life of me I can’t see how anyone can say that it is wrong for a court to strike down a law it finds exceeds the government’s powers.

        1. It is the duty of the courts to strike down such laws.

          However “defer to the legislature” means exactly the opposite.

          It means to assume the legislature is correct and to defend them against those who would claim otherwise.

          1. Defer to the legislature means you don’t make judgments for them. You don’t decide if the law is a good idea. You only decide if it is Constitutionally permissible.

            1. That’s what judicial deference used to mean, yes. Now it means something else.

            2. Sometimes “Constitutionally permissible” does hinge on whether or not the law is completely stupid. I don’t think there is any way to get away from this entirely.

              That’s what’s stupid about “conservative” jurisprudence. It can only truly exist in a fictitious world.

    2. I think that “activist judges” means almost nothing at this point and should be avoided by anyone who wants to have a serious discussion about the proper role of the courts. Activism isn’t a good or evil unto itself.

      1. It means something very specific. It means, “The justices decided something in a way we don’t like, because it conflicts with our political preferences.”

        Roe v. Wade was “activist” to social conservatives, but simply affirmed basic rights, to social liberals.

        Heller was “activist” to social liberals, but simply affirmed basic rights, to social conservatives.

        As a libertarian, I’m pretty much fine with both rulings, and would love to see more “activism” with the presumption of liberty — if there’s any doubt about Constitutional authority, the opinion defaults to the side of individual liberty. A court that operates this way, can be as “activist” as it wants, as far as I am concerned.

        1. Me too.

          I support Roe, Heller, Griswold, Kelo, Lawrence, and Citizens United.

          Yet wingnuts here dispute my LP cred.

          1. I support Suzette Kelo, not the ruling in Kelo — which was, BTW, the result of a “conservative” justice who was happy to err on the side of the most expansive possible interpretation of the Constitution, to avoid being “activist”…

            1. Meant to say the most expansive government power possible in an interpretation of the Constitution.

              Kelo v. New London was a clear case where the government was operating as an agent of a corporation offering gifts, not following the “will of the people” which IIRC was 80% in favor of Suzette Kelo’s side, according to polls at the time.

        2. I feel about the same way. More freedom good. Less freedom bad. I don’t know if it would work very well in practice, but allowing the court to be more activist, in one sense, and let them actively look for unconstitutional laws to get rid of seems desirable to me. Or at least give any citizen standing to challenge any law as unconstitutional.

          1. To put it in practical terms, take the First Amendment.

            If there’s any doubt about the First Amendment, the decision defaults to freedom of speech, instead of developing labored excuses for limiting it (community standards of decency, etc.). I don’t see “community standards of decency” anywhere in the Constitution, nor, as I can recall, in the Federalist Papers or the Anti-Federalist. That’s judicial activism — the justices MADE UP a way to allow legislatures to do what is not clearly Constitutionally permissible.

            Doesn’t seem too scary.

            1. I mean that the presumption of liberty doesn’t seem too scary.

  7. I suspect the Judicial Activists (Scalito, Thomas, Roberts) will be gunning to overturn a law written by The People.

    1. “The people” = liberal congressional staffers & Insurance Industry Lobbyists

      1. The People = Legislation by elected representatives.

        Not that THAT is an excuse for dumb laws.

        1. Douchebagsezwhut?

        2. “The People = Legislation by elected representatives.”

          That’s just stupid.

          1. By shriek’s reading of the phrase, the Fourth Amendment means the police only need a warrant to search Congress.

      2. In my book, yes, exactly.

    2. We aren’t a fucking democracy, we are a constitutional republic. Oh, and half “The People” don’t AND didn’t want the damn law to begin with.

      1. So ACTIVIST Justices decide that. I SUPPORT Activist justices.

        Its the stupid conservatives who demonize them.

        1. I find myself agreeing wholeheartedly with shrike, here.

        2. My bad, I actually agree with that.

      2. Actually it’s more like 75%

    3. Come on guys, you are getting trolled here. Not even the most government loving liberal thinks that laws are written by “The People”.

      1. Bullshit. The House is the People. It passed as shitty as it is perceived to be.

        The Senate passed it and the President signed it.

        This is an objective fact and not a value judgement.

        1. “The People = Legislation by elected representatives.”

          OK. I guess if you actually believe that then the earlier statement sounds less absurd. But the House is still not the people. It may be closer to the people in some ways than other parts of the government, but saying that the house is the people is just a metaphor. It isn’t really true. If you are going to insist on that, then you really are trolling. In any case, who wrote or passed a law is immaterial when you are discussing its constitutionality.

        2. Congress is not The People.

    4. Re: shrike,

      I suspect the Judicial Activists (Scalito, Thomas, Roberts) will be gunning to overturn a law written by The People.

      “The People”? Do you mean these guys?

  8. I’m with John.

    Courts’ letting legislatures do what they want is liberal. Courts’ saying, “No, the Constitution doesn’t let you do that,” is conservative.

    1. The confusion comes from the Nixon era when fascists called themselves conservative.

      Expect the same kind of crap from a Romney administration.

    2. The latter also smacks of libertarian.

    3. I’ll remember that when the GOP again demands a law requiring vaginal/anal rape by device to reduce abortion/contraception.

      1. STEVE SMITH IN FAVOR OF BOTH KINDS! STEVE SMITH DOESN’T NEED DEVICE THOUGH…STEVE ALREADY EQUIPPED WITH PROPER DEVICE!

      2. That was fucking retarded on their part.

        From my understanding, intravaginal ultrasound is already used during abortion procedures so there’s no need to mandate it unless you’re fighting culture war bullshit.

        1. The bullshit is from the “abortion rights” crowd. They know, or ought to know, that these invasive procedures are routinely practiced by abortionists, but they choose to blame the prolifers.

          And of course, the vaginal exam is hardly the only invasive procedure performed by abortionists. Abortion itself is another.

          When a (female) legislator in virginia introduced a bill – now law – requiring women to look at an ultrasound before killing their fetus, abortion providers panicked. Such a law will cut down on their income, since there are some women who would have had abortions who will be deterred from doing so by looking at the child they’re thinking of killing. Thus, less profit for the abortion providers.

          Also, choicers aren’t interested in actually facing what they’re doing, so the less they have to look at their victims, the better.

          1. And the final version of the bill, responding to the choiceres, contains a declaratory amendment specifying that a vaginal exam is *not* necessary. You can use the less-invasive exam if you want.

          2. No, the bullshit is most definitely from both sides. You are just as engaged in the culture war bullshit as anyone. You make the argument that ultrasound is already used in abortion. Quite valid. The “rape” objection is dumb. But then you seem to think that forcing someone to look at it is OK because of that. Or something.

            None of what you say makes any sense unless you already assume that what you are arguing for is correct.

            1. The only solution to the culture war would be to poll people about abortion, and euthanize everyone with a really strong opinion, on both sides. But then, I’m sure the remaining people would find some other shit to bicker over.

              1. How can the issue be unimportant? If restricting abortion is like enslaving women, wouldn’t that be important? Or conversely, if abortion involved destroying a human person, wouldn’t that be important?

                Under what scenario would this be a minor matter not worth bothering about? If you don’t like the people involved in the dispute?

                But how does the alleged douchiness of “both sides” make abortion any more or less murder, or (conversely) how does it make regulation of abortion any more or less slavery?

    4. You’d think that, but many, many mainstream conservatives hate judges and fear judicial activism so much, they’d rather let liberal, unconstitutional laws stand than to see a court strike them down.

      The thinking something like this: if the court can declare Obamacare unconstitutional, then it can also declare laws against gay marriage unconstitutional.

      Of course I think that’s ridiculous; what the hell is the point of the courts otherwise? I think a lot of those conservative thinkers are forgetting that the founders went through a great deal of trouble to limit the potential of a “tyranny of the majority”. A lot of modern conservative thought doesn’t believe any such thing can exist. Bork has written extensively on his view that, if the majority wills it, then it is, by definition, not tyranny, and therefore is acceptable.

      1. Yeah, the point is separation of powers. Also, even if the courts strike something down as unconstitutional, there’s still the amendment route. That’s the whole point. If something is so important yet unconstitutional, a method exists to make it constitutional.

        1. Which is what they should have -started- with.

          1. Why bother? People don’t bother following the rules anymore, and it’s not expected.

        2. If something is so important yet unconstitutional, a method exists to make it constitutional.

          Elect a President who will appoint Justices who will read the Constitution more favorably?

      2. Bork has written extensively on his view that he is a fucking braindead moron.

        1. He’s really made the case pretty well for a brain dead moron.

          1. What’s scary is the extent to which some conservatives lionize the douchebag, for the sole reason that they really hate Roe v. Wade. They don’t appear to think one bit further than that, about the real implications of Borkisprudence.

      3. You’d think that, but many, many mainstream conservatives hate judges and fear judicial activism so much, they’d rather let liberal, unconstitutional laws stand than to see a court strike them down.

        This. I think conservatives are greatly concerned by the idea of establishing principles. If, for example, the courts were to stop using that ridiculous interpretation of the Commerce Clause currently in vogue (i.e. that it’s reach is virtually unlimited) that would end up striking down laws that conservatives love (like the War on Some Drugs).

    5. ”Courts’ letting legislatures do what they want is liberal. Courts’ saying, “No, the Constitution doesn’t let you do that,” is conservative.””

      Really? Does it have to be judged in a liberal vs conservative debate?

      How about saying “No, the Constitution doesn’t let you do that,” is just them doing their job.

      If conservativism is obeying the Constitution, then there are only a couple of conservatives left in government, and Fox News would be a liberal news channel.

  9. “Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate poll taxes as part of this national legislation,” Sutton wrote, “allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”

    Beautiful! What I really like is that you can replace it with a whole bunch of other ways to trample on individual rights and it makes just as much sense.

  10. “One week from today the U.S. Supreme Court will begin hearing oral arguments”

    Ohio Urine?

  11. “Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation,” Sutton wrote, “allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”

    Here’s a judge with no idea what judicial review means.

    It does not mean “judge the utility, effectiveness, or advisability of the law”, as he seems to believe.

    1. It’s really sad how many people think this way about the courts. If they see the results of a ruling as good, then they like it, if they see it as bad, they don’t, completely disregarding the actually relevant constitutional or legal argument.

  12. “Libertarians” on the Supreme Court.

    Yeah, right.

    1. Libertarians are sneaking bastards Brooks. They are expert in the art of hiding in plain sight.

      1. Libertarians are sneaking bastards Brooks. They are expert in the art of hiding being ignored in plain sight.

    2. One can dream, right?

      1. Janice Rogers Brown would rock the Court.

    3. BUT BUT Clarence Thomas!

      1. Only on Thursdays and during his wife’s PMS

  13. Some (not all) conservatives have smoked the crack pipe of populism. These are the conservatives who would be willing to have courts uphold just about any law for the sake of Teh Peepul.

    Thank God, not all conservatives are as addled as this. But it’s the populist conservatives the legal left likes to focus on, as part of their overall conservatives-are-hypocrites-unless-they-agree-with-us meme.

    1. Unfortunately, the populist conservatives seem to outnumber the non-populist conservatives. Otherwise, Gingrich and Santorum would already be out of the race.

      1. There’s a strong temptation to populism if your opponents persistently ram bad policies down the throats of a skeptical public – policies which would go down in flames if actually put to an up-or-down vote (busing, abortion on request, affirmative action, etc., etc.)

        But conservatives should rise about this temptation and allow the possibility, not only that a majority may be wrong, but that it may need to be restrained.

        1. You give yourself away as a dyed-in-the-wool culture warrior when your first example of legislative overreach is busing.

          1. If you’re discussing the history of the culture war, can you think of any way *not* to mention busing?

  14. I don’t know why Root is teaming up with the liberals in this meme that conservatives can’t be conservative because they once supported a court that overturned a law. Take that judicial restraint bullshit over to the Nation.

  15. The fate of the individual mandate depends on which side of that divide holds sway over the Supreme Court’s conservative bloc.

    If that’s the case, then this won’t be 5-4 either way depending on which side of the bed Kennedy wakes up on.

    It’ll be 7-2, mandate upheld, bitchez.

    1. My thoughts as well

    2. At that point they might as well just toss the constitution and replace it with a rubber stamp saying “Of Course They’re Allowed To Do That. You Elected Them.”

  16. Dude is smoking some serious crack man!

    http://www.Anon-Planet.tk

  17. It is said that bad facts make bad law. The facts of this situation are bad for conservatives or libertarians. We have an industry that has been operated as a 50 state cartel “in restraint of trade” which the feds are trying to match up with a monopsony. The conservative/libertarian position would be to break up the cartel by declaring unconstituitonal the supporting acts. It is neither conservative nor libertarian to leave the cartel in place and oppose the perfection of the monopsony.

  18. Yeah, taking our complaints to the ballot box works really well for people like us here in Idaho, where the entire state’s population is about 1/5 of that of New York City.

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