Judges on a Rampage!
Ok, I guess you heard by now that the US Supreme Court did not strike down Obamacare altogether. The Court only struck down part of it. And four justices went berzerkowitz — howling that failure to strike down the whole thing will mean the end of the universe as we know it, not to mention dogs sleeping with cats (to borrow Bill Murray’s line from Ghostbusters). I am relieved that Chief Justice Roberts decided to let most of the law pass. But I am concerned about two aspects of the debate.
First, I think the rhetoric has gotten way out of hand. Come on, now. We are talking about the commerce clause. This is a clause that the US federal government has used endless times to forge a unified national market. Supreme Court review of legislation based on the commerce clause has had the lowest standard, asking only that there be some “rational relation” between the purpose of the law and interstate commerce. Suddenly now there is fear that these commerce clause powers are too broad? Isn’t this a bit late in the game for that type of whining?
Second, I agree with Neal Katyal who thinks that judges are getting a little too excited about their power to strike down and re-draft laws that don’t fit their ideology. Some folks squawked like mad when Harry Blackmun allegedly engaged in social engineering by expanding privacy protections in Roe v. Wade. Now folks of the same political persuasion are cheering like mad for social engineering that re-shapes the nature of US democracy by pruning back core federal powers.
Well, let’s see what happens next. But I would say, “two cheers for the Supreme Court!”