President Obama and top Democrats have repeatedly exuded cautious confidence that the Supreme Court will uphold part, or most, of the Affordable Care Act. But underneath their strained optimism, the Obama administration almost certainly knows that politics, not law, will ram its way into the court's final decision. There was never much doubt that the health care law would face rough sledding from the court's four ultra conservatives. The tip-off of that came quickly. The four judge's hard line challenge to the government's position during oral arguments signaled that they leaned heavily toward scrapping the law. The ostensible hook that the conservatives latched onto to assail the law was that the individual mandate is an unlawful infringement on individual liberty. It allegedly forces Americans to buy insurance. Nowhere does the Constitution confer that power on Congress or the executive branch.
That's just the start. Polls show that a slender majority of Americans want to dump all or parts of the law. This includes some Democrats. Despite loud protests that they are not swayed by public opinion or ideological beliefs, the court conservatives are, and the polls give even more ammunition to them. But even without the polls, the GOP and ultra conservatives waged their own very public and relentless war on the health care reform law from the moment that Obama proposed it. They claim that it is too costly, too overburdening on businesses, too unpopular with a majority of Americans, and that the law is an unwarranted infringement on the power of states to regulate health care and private insurers and health providers to offer it, price it and administer it.
A decision to scrap the health care law will be the political icing on the cake for a court that has done everything it could to tip the political scales back toward the GOP. The first nudge was the Citizens United ruling that virtually gives corporations and the super rich unrestricted license to pour any amount of money they see fit into political campaigns. The conservatives made a preposterous twist of the 14th Amendment to confer individual rights and freedoms on business entities to justify the decision. The ruling was a clear reaction to the shock of the 2008 presidential campaign. The shock was that Obama and the Democrats, for one of the rare times, beat the GOP at its own fundraising game. It raised tens of millions, with a good chunk of that coming from Wall Street and wealthy donors. These are the donors that traditionally give lop sided amounts of money to the GOP presidential candidate's coffers. The ruling was aimed at demolishing the campaign fundraising field and insuring that in 2012, and future presidential campaigns, that the GOP reasserts its financial supremacy. In the era where money not just dominates but virtually buys elections, the side that maintains the top heavy edge in funding will win elections outright or at the very least insure that it will always be competitive.
The Supreme Court conservatives continued their blatant political assault with the recent ruling in the Knox v. SEIU case. It virtually mandates that unions can't collect dues from non-union members even when the unions are fighting for wage and job protection rights that affect those not in the unions. The ruling ostensibly upholds individual liberty. But the result is that it will severely cripple public employee union's ability to raise the monies necessary to vigorously fight for labor protections which is exactly the intent of the ruling. The decision gives a legal cover to GOP governors to further sledgehammer public employee unions in their states.
Next up is affirmative action. The court almost certainly will use the suit by a white former Texas student against the University of Texas's modest affirmative action program to once and for all dump affirmative action in education. This will have a ripple effect throughout all government and even corporate affirmative action programs.
The court's sharp upturn in the sheer number of conservative decisions tells the real story of the court's naked political activism. In the first five years under the watch of Chief Justice John Roberts, the court issued conservative decisions in nearly 60 percent of the cases. In the term that ended the year after Obama took office in 2009, the percentage of conservative decisions shot up to 65 percent. This is the largest number of overt conservative political decisions in over a half century. There's no sign that that the court's conservative rulings rampage will change.
The health care reform law if it is overturned will be the court conservative's political coup de grace. It would come in the heat of what will be a close most intense White House race and will earmark yet another would be big political gift to the GOP. With that and its other decisions, it has done everything it could to bend the law for its blatant political ends.
Earl Ofari Hutchinson is an author and political analyst. He is a frequent political commentator on MSNBC and a weekly co-host of the Al Sharpton Show on American Urban Radio Network. He is the author of How Obama Governed: The Year of Crisis and Challenge. He is an associate editor of New America Media. He is the host of the weekly Hutchinson Report on KPFK-Radio and the Pacifica Network.
Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson
Follow Earl Ofari Hutchinson on Twitter: www.twitter.com/earlhutchinson
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To me, judicial activism is an ends justify the means reasoning rather than the other way around. Basically, you know how you want to rule on a case and develop legal reasoning in support of that decision rather than looking at the law and developing an answer based on interpreting the law.
I would like to believe that the current justices are not judicial activists. There are two main legal thought processes behind reading the constitution. Originalists tend to be more conservative and those that believe in a living constitution tend to be liberal.
Based on my thought process, I am an originalist. This also tends to make me have more conservative (political not moral) viewpoints. Did I develop an originalist mindset because I am a conservative or does my particular method of reasoning develop conservative viewpoints? I believe it is the latter. That is why there is the appearance that the 4 originalist justices are marching with the conservatives and the 4 living constitutionalist justices walk with the liberals.
Did Ginsburg's time at the ACLU make her liberal, or did her legal and moral reasoning make her a perfect fit for joining the ACLU? If you believe the former, she is a judicial activist. If you believe the latter, she is simply a justice whose rationale makes her tend to read the constitution in a way that favors liberalism.