Can Liberals Only Conceive of the Supreme Court in Partisan Terms?


When the first legal challenges to ObamaCare and its individual mandate were filed, most of those backing the challenges thought the chances of the challenges succeeding were slim. They didn't think they were wrong. They just thought that they would have a hard time convincing the legal system, which they viewed as excessively deferential to congressional power under the Constitution's Commerce Clause, that they were right. But despite what they believed to be long odds, they nonetheless thought they had to try, in hopes that the legal system might place some limits on the federal regulation of commerce.

The challenge worked about as well as they could have hoped. We obviously don't yet know how the Supreme Court will rule on the health care law, but at this point most observers believe that it is entirely possible that the Supreme Court will rule against the law—perhaps even striking it down entirely.

Liberals have long insisted that ObamaCare's constitutionality is so obvious it barely needed to be defended. They are now arguing that if the Supreme Court does strike down the law, ObamaCare's defenders should react with anger and outrage, not just running against Republicans who opposed the law but against the high court itself. And more than that, they are suggesting that any ruling against the law or its mandate is necessarily illegitimate. After all, legions of liberal legal scholars agree that only a politicized, partisan court could reject such an obviously constitutional provision: Requiring the purchase of health insurance coverage simply as a matter of being alive and a resident of the United States falls well within the bounds of precedent, the argument goes.

Yet virtually all of these same liberals support the last century's worth of breaks from precedent when those breaks come down in favor of laws they like. Most subscribe to a basic theory of the Constitution that argues that the document's meaning evolves and changes over time, depending on particulars and circumstances as well as on the specific interpreters and arbiters themselves.

Perhaps now is the time for some evolution. If the Supreme Court sides against ObamaCare, it will be siding with a public that has consistently opposed the law as a whole and overwhelmingly opposes the mandate. If the Court rules against the mandate, it will not be upending swaths of existing law but instead ruling on a novel and unprecedented federal requirement that affects nearly all people simple because they are alive and legally residing in the United States. And it would be setting an outer limit on the power of Congress to regulation commerce. It will be settling a controversial legal and constitutional question that has yet to be decided, which is, after all, what the Supreme Court is supposed to do.

Liberals seem to believe that the only sentiment that could possibly support a ruling against the law is blatant partisanship. As The Examiner's Timothy Carney writes, "The liberal argument today, though, is not merely that Congress can regulate inactivity, but that any argument to the contrary is dishonest or idiotic. This allows the Left to portray an adverse ruling as nakedly political."  

It's a telling view. Liberals have for so long relied on novel interpretations of the Constitution designed almost exclusively to advance their own legislative ends that they simultaneously cannot believe that there is any alternative and yet are deeply offended by the idea that their political opponents might do the same. Their position is essentially that the Court's rulings are only legitimate when they advance favored liberal policies: Court packing? A mark of a historically great president. Reading new rights into the Constitution based on the high court's mysterious intuitive sense of what it all really means? A definitive ruling that must be protected at all costs.

But if the court should decide that a novel and unprecedented federal provision designed to compel commerce in order to regulate it is beyond the scope of the federal government's authority based on a clause that grants Congress the power to regulate interstate commerce, well then, the whole system must be illegitimate. The job of the Supreme Court is to enable Congress, not limit it, duh.

And yet that is obviously not the only alternative. When ObamaCare's opponents set out to challenge the law's constitutionality, they hoped to defeat the law by bringing others to their side. It has clearly worked with the public. And if the Court rules against ObamaCare, it may not be purely the result of partisan calculation, but of weighing the arguments against the law and its mandate and being genuinely convinced that the opponents had the better case. This is what so many of the law's defenders apparently cannot believe. 

Regardless of how the high court rules, what many liberals have revealed is a lack of legal imagination: They can only conceive of the courts and the Constitution in partisan terms, as a vehicle for the advancement of a political agenda. Ultimately, it is not the Supreme Court's legitimacy that is threatened by this ruling, but the legitimacy of the liberal legal establishment.