Yet another in a series of articles from liberals who feel courts are illegitimate when they overturn laws that liberals like. This time it's Dahlia Lithwick, who wonders if judical review itself is a good thing. Fair question, but it sure seems to be asked by those on the losing end.
In the good old days when judges were fighting against the stupid/evil voters to ensure busing or abortion or whatever, the courts were doing the right thing. In fact, Lithwick still cheers them on when they overturn laws on immigration, same-sex marriage, voter fraud and so many other things the public gets wrong. But now that Obama's health care law is being challenged, we can no longer countenance such anti-democratic action.
There is no serious constitutional argument against Obamacare, and we live in a nation with "almost sinfully inadequate health coverage." This Lithwick considers undebatable. So I can see why she's impatient with the courts. And since they vote along partisan lines (though they do this a fair amount on other issues which don't bother her so much), that makes it even worse.
She's also fearful if the health care law is overturned, it will hurt the legitimacy of the judiciary. Because after all, imagine what people will think of a court that strikes down a highly unpopular law--don't they know a fair amount of legal experts believe it's constitutional?
She considers the distinction between activity and inactivity, which the case turns on, to be a novel one. Really? I would think the distinction has a long legal history (the difference between pushing someone in front of a car and not pulling them away) and is found in the Constitution not only by implication, but in the 13th Amendment.
But fine, let's call it a novel argument. (You know, like saying growing and eating your own corn implicates interstate commerce.) So I guess she sees no important legal distinction between the government banning a thousands products and forcing you to buy a thousand products. So the government could send you a budget on Janauary 1st and that's how you'd spend your money for the year. But that would never happen, Lithwick argues, so why talk about it? Her main point seems to be this is all a distraction--the trouble with judicial review is it makes us concentrate on insignificant legal issues while obscuring the actual issue, which is the deplorable state of health care in the U.S., which obviously the federal law will ameliorate.
So, there's health care and then there's our rights. I'm sorry she's so sure she's correct on the first issue that she doesn't need to care about the second, which, by the way, she's also sure she understands better.
PS In a recent 8-1 decision, which I guess makes the Supreme Court look legitimate, they overturned the Kentucky Supreme Court and made it easier for police to do warrantless searches. What happened was officers were pursuing a drug suspect and thought they smelled marijuana in an apartment. They banged on the door but there was no answer, so they loudly identified themselves and, fearing evidence was being destroyed, kicked in the door. They found someone with drugs, but it wasn't the suspect. The Court allowed the evidence to be used.
Justice Alito wrote the opinion, explaining the search was reasonable due to exigent circumstances. So I guess there are lessons here both for cop and culprit. If you're the police, you don't have to come across exigent circumstances any more, you can create them. If you're a drug user, just remember, when the police bang loudly at your door, calmly answer and ask them to go away. Doing nothing gets worse results.