That's Your Opinion
A couple days ago, I noted the problem of judges following election results. Now I see this odd sentence at Megan McArdle's blog:
Does [Obamacare's unpopularity] matter? I think it does, in two ways. Firstly, as several legal observers have noted, the Supreme Court is more likely to strike down Obamacare, or at least major pieces of it, if there's clearly a strong public sense that the Democrats overreached. The Supremes are much less likely to overturn a very popular health care law that they think abuses the spirit of the commerce clause, than they are to overturn a health care law which abuses the spirit of the commerce clause, and is hated by a majority of the population.
Really? I'm not saying she's obviously wrong, but this is the Supreme Court. They're appointed for life and can't be overturned. I don't know how they'll rule in this case, but all the Justices in the past have written or joined opinions that went against public opinion, and on a fairly regular basis. I certainly hope they won't be affected by Obamacare's lack of support in any opinion they write.
posted by LAGuy @ 12:02 AM
4 Comments:
Its kind of a pointless argument since judges reach decisions through their own internal processes and while they write public opinions justifying/explaining their decisions, we can really never know why they vote in any way. It can't hurt the argument of someone who wants to overturn a law for it to be unpopular (if in fact it is in the way McArdle says - I'm sure its unpopular the people she spends time with) but who can tel if it has any effect.
On the other hand- attempted "open politicking" of the court-no matter how unpopular the law- could easily backfire -but again who can ever know?
Since the Constitution has penumbras (at least since Griswold gave us the penumbral right of privacy), there is clearly room for even S.Ct. Justices to incorporate public sentiment into their deliberations.
Constitutional penumbras are not written down, so S.Ct. Justices have to seek other sources to determine what falls within and without the given penumbra. Take the definition of pornography. Pornography is outside the protection of the 1st Amendment, but what constitutes pornography depends on "contemporary community standards." In Jacobellis, Justice Brennan noted by community, we mean "society at large; . . . the public, or people in general." Isn't this a reference to public opinion, which is relevant to determining the constitutionality of a specific work?
By similar analysis, the S.Ct will have to decide, among other things, if requiring citizens to purchase health insurance is within or without the parameters of the Commerce Clause. Since the commerce clause obviously says nothing about health insurance, the Justices will look to its Penumbra, and I think public opinion will be considered.
Pornography is not outside the protection of the First Amendment, obscenity is. The test for determining obscenity has more than one prong, and cannot be determined by "community standards" alone.
My mistake, I meant obscenity. But as with looking to "community standards" to determine the constitutionality of a restraint on speech, I am sure the S.Ct. will be influenced by a sense of whether the public considers a mandate to purchase insurance part of interstate commerce. Some of the justices at least will also consider whether the founding fathers would have considered it part interstate commerce, another externality outside the so-called "four corners" of the Constitution.
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