Cutting Through the Supreme Court/Obamacare Noise

The media, as usual, has done a horrid job of explaining the Supreme Court issue with Obamacare. You have very likely taken away this conclusion:

The personal mandate was a liberal initiative. If the court strikes it down, it's because the conservative justices are ideologically opposed.

No. Every part of that is wrong.

First, the personal mandate was a conservative initiative, and is intrinsically so if you'll think about it: There ought to be no free rides on government programs; since all may benefit, all must pay into the pot! But don't take my word for it; see the following illuminating six minute clip reel of conservatives blustering about how essential the personal mandate is:

When Obama championed the personal mandate, conservatives switched and railed against it. Not because Republicans are inherently evil hypocrites (Democrats do the same under Republican presidents), but because a competitive political system discourages opposition parties from granting legislative victories to the other side. At its worst extreme, this dynamic could make politicians prefer to wreck the country rather than let their opponents take credit for rescuing it.

So the outrage over the personal mandate is not philosophical; it's not liberal vs. conservative. It's political. Efforts to overturn Obamacare are driven not by disagreement over health care policy, but by the desire to thwart the opposition. And, once again, that move is not owned by the Republicans. The Democrats did much the same under Bush.

So if the conservative Supreme Court justices overturn this, it will not be philosophical, it will be blatantly political. And, what's more, they'll need to go out of their way to do so, as even the most conservative legal scholars (including uber-conservative law professor/blogger Orin Kerr, and Charles Fried, Ronald Reagan's solicitor general) insist that, whether one likes it or not, the Affordable Health Care Act is of course constitutional.

Our political system is what it is. Congressmen are just playing the game - doing their jobs, as it were. But the Supreme Court will have to go out of its way to blatantly cross a hard line on this one, and there's nothing philosophical about it.

Interestingly, Dalia Lithwick thinks they will decline to overturn...but only to keep powder dry for lots more political activism to come later in this term (a Texas redistricting case, the Arizona immigration case, a Texas affirmative action case, and a case Lithwick says "will question the entire existence of Section 5 of the Voting Rights Act." Plus, next term, a gay marriage case).

Or, at least, Lithwick thought so before she heard this week's arguments, which left her feeling gloomy about the whole thing.