As Dwight K. Schrute says, Kuh-westion: What is the single worst thing a judge can do, according to conservatives? No, not make crude comments to female aides about porn videos. That nets out a rather dandy plus, as we know. To the right, the single worst thing a judge can do is “legislate from the bench.” So it’s worth noting that what conservatives want five Supreme Court justices to do with regard to the Affordable Care Act is ... legislate from the bench. Over the course of the past several months, since the Elena Kagan hearings, they’ve devised a spiffy new justification for it. And if the court grants their wish, it will only make that infernal law far more popular than it’s ever been.
I realize that the general category of “conservative hypocrisy” is not exactly man bites dog, and this instance probably isn’t even the number one case of it this week. That would be Paul Ryan calling himself a fiscal conservative (you know, the man whose new plan would balance the budget not in two years or five years but in—and yes, you’re reading this right and my math is right—28 years, and even then only on the basis of some really slippery assumptions). But central as the alleged abhorrence of legislating from the bench has been to the conservative movement for 30 years, it’s worth reflecting on the absurdity of the current situation. On what will probably be the most important and consequential high-court ruling in 13 years, since Bush v. Gore, conservatives will be cheering for their justices to violate what they tell the rest of us is their most fundamental and inviolate jurisprudential principle.
It is all those things, of course, except when it isn’t. In those instances, we’re just supposed to forget. In 2009, when the court held for white firefighter applicants who were plaintiffs in Ricci v. DeStefano, the five-member conservative majority (the usual four and Anthony Kennedy) most certainly was making new policy. And not even federal policy, but local policy. The majority, in Jeffrey Rosen’s words, invented “a new legal standard to determine when cities can throw out promotion exams that have discriminatory effects on minority firefighters.” There have been other cases. Indeed, with regard to this very health-care law, the early 2011 ruling against the law by Roger Vinson, a federal judge in Florida, was the definition of legislating from the bench.
Conservatives know this, and so, in preparation for the great day soon to be upon us, they have cleverly articulated a new standard. Now, they say, legislating from the bench isn’t the worst of all evils. That title is currently held by judges who have too expansive a view of the power of the federal government. Texas Senator John Cornyn was prominent among those who laid out this new thinking at the time of Elana Kagan’s confirmation hearings in the summer of 2010.
First, go back to the previous summer and Sonia Sotomayor’s hearings. At that time Republicans on the Senate Judiciary Committee were badgering her about legislating from the bench. But by the following summer during Kagan’s hearings, Cornyn was expressing new concerns.
What changed between Sotomayor and Kagan’s hearings? I submit that what changed is that the health-care law passed. Read this passage from a New York Times article written at the time of the Kagan hearings: “In a twist on their argument that Ms. Kagan might be a ‘judicial activist’ who would legislate from the bench, some Republicans expressed concern on Wednesday that she might be too hesitant to strike down acts of Congress that arguably exceed the federal government’s constitutional authority. ‘I am concerned that she views the power of the federal government to be essentially without limit,’ Mr. Cornyn said. ‘She said yesterday that the courts would defer to Congress, and Congress knows no limit to its power grabs, as we’ve seen.’”
Sure enough, when Cornyn announced a couple weeks later that he’d vote against Kagan, he said: “I don't believe that any nominee should be confirmed to the Supreme Court unless he or she has made clear that they will protect the fundamental rights written in our Constitution, and will not abuse judicial power to impose their own policy standards on the American people.” What this statement really means—filtered through Cornyn’s more revealing quote to the Times—is this: “I won’t vote for a nominee who is not willing to protect the people from congressional overreach.”
In other words, Cornyn was no longer troubled by judicial activism. It was now judicial reticence that was his great concern!
So this is how they’ve managed to square the circle. But it’s all nonsense. It’s just finding fancy justifications for a set of desired outcomes that are driven by ideology and not by any particular consistent legal view of the world. And people know that. Therefore, if the court does overturn the ACA, if this group of five conservatives legislates from the bench and violates the central conservative legal tenet of recent American history, enough Americans will smell a rat that the decision will invite a backlash. Certainly, liberals who were never wild about it (and there are many) would find themselves suddenly angry that it was negated by these five, not to mention furious at the sight of celebrating conservatives. And to independents who weren’t fans of the bill, Barack Obama can say, “OK, it’s gone, but if your 24-year-old daughter gets thrown off your plan, or your spouse gets denied coverage because of a preexisting condition, don’t blame me. I bestowed those rights. Some other people took them away.”
There are ways, in other words, that Obama would be better off politically by losing this case, after he endures the first few days of horrible press. Unfortunately, the country would not be better off. The actual conservative vote here is to let Congress make the laws, and let Congress change the laws. One hopes that at least one of the court’s conservatives will remember that.