Tuesday, November 29, 2011

'Activist' conservatives’ judicial con

   Here's the situation coming down the stretch: The Affordable Health Care Act is winning by a nose.

   That would be the one-vote majority by which the U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of the most sweeping reform of health care since Medicare.

  A Reagan appointee, of all people, Judge Laurence Silberman, wrote the opinion affirming its constitutionality, saying the Interstate Commerce Clause of the Constitution allowed it.

   And, so, you know what that means.

   It means that conservatives are pleading, beseeching, burning incense on altars for a little judicial activism by conservatives on the U.S. Supreme Court.

   Justice Antonin Scalia, this is your cue to show us the political animal you are and always will be.

   We have been led to believe that you and your cohorts on the court's right wing are "strict constructionists" who don't bend with partisan breezes. Pardon while I sneeze.

   The drone from the right is about villainous judges who ignore the popular (legislative) will.

   If that activism is rejected by Justices Scalia, Roberts, Thomas and Alito, President Obama's signature social achievement has it made in the shade.

   By review relative to the health care that was law "rammed down our throats": Obama ran for president promising reforms to insure all Americans. The Senate and House arrived at a compromise. He signed it. This is called representative democracy.

    Conservatives now beg fellow conservatives on the court to overturn it.

    That, by review, is judicial activism.

    Anyone paying attention to Scalia and company will acknowledge that such activist urges — ignoring the popular will expressed through legislation — is hardly unprecedented. The court overturning key aspects of campaign finance law in the 2010 Citizens United case is Exhibit No. 1.

    Other examples include the conservative wing of the court voting to overturn the Violence Against Women Act and the Gun-Free School Zones Act.

    Then there was a certain presidential election in 2001. The court overruled Florida's courts because — as constitutional constructionist Scalia explained — all that counting and recounting had gone on long enough.

     That, wrote Adam Cohen in The New York Times, "isn't a constitutional argument. It is an unapologetic defense of judicial activism."

     Back to the Affordable Health Care Act, which a gaggle of Republican attorneys general seeks to repeal. The argument is that the individual mandate to have insurance exceeds federal power.

     However, as Silberman points out, the Commerce Clause is open-ended. Additionally, he points out that the circuit court was ruling on "a long-established constitutional power, not recognizing a new constitutional right." This sounds like, um, strict constructionism.

     Republicans challenging the law in court want to construct, 223 years after ratification and through judicial fiat, limits existing only in their minds.

     Once again: The law in question was signed by a popularly elected president after passing Congress. This is how the system works, unless capricious judges can't stomach it.

     Honestly, sometimes it appears Republicans don't know what they want with the courts. One day they advocate court-stripping mechanisms to get judges out of the way of what they do legislatively. The next day, to block duly enacted legislation, they burn incense hoping their favored judges will get a whiff.

    The Constitution? They revere it — except when they can't hack it, and want to amend it. I am reminded of Texas Sen. John Cornyn, who from the moment he came to Washington in 2003 and got seated on the Judiciary Committee seemed to spend every moment conjuring up new constitutional amendments — against gay marriage, against flag burning, against abortion, for school prayer, for an "official" language, and most recently for a balanced budget.

   This is a document conservatives revere? Said reverence is more commonly reserved for toilet paper.

   The conservative wing may in fact bring Obama's chief legislative accomplishment crashing down. If it does, however, know what is at play: partisan judges who say lawmaking is what the legislative branch does, except when they don't like it.

    Longtime Texas newspaperman John Young lives in Colorado. Email: jyoungcolumn@gmail.com.

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