A Daily news digest by Jasper van Santen

This supremely Republican supreme court – guardian.co.uk

In News, Politics on April 27, 2012 at 18:08

US supreme court Justice Antonin Scalia, 2011

US supreme court justice Antonin Scalia (in 2011): ‘sounding like a third-rate wingnut talkshow host,’ says Lemieux. Photograph: Charles Rex Arbogast/AP

This supremely Republican supreme court 

The 2008 elections represented a decisive repudiation of the policies of George W Bush and the Republican party. Yet, conservative Republicans still control the supreme court – and this fact may effectively nullify the results of the 2008 election in several important respects. Worse, the Roberts court seems poised to advance its own partisan policy preferences not in the name of fundamental rights or even serious concerns about federal power, but behind feeble constitutional arguments that all but announce their own unseriousness.

The most egregious example, of course, is the very real possibility that the supreme court will strike down the Patient Protection and Affordable Care Act (PPACA), otherwise known as Obamacare, the centerpiece domestic legislation of President Obama’s first term. While Obama exaggerated when he asserted that this kind of judicial activism would be “unprecedented”, it would be the first time in more than 70 years that the supreme court will have struck down a legislative enactment that was so central to the agenda of an incumbent administration.

Particularly since the constitutional vision of the court that rejected the New Deal was thoroughly discredited, surely such an unusual assertion of judicial power demands appropriately compelling arguments? Instead, however, the constitutional harms being asserted by those challenging the PPACA and urging the supreme court to go against decades of settled law are almost laughably trivial. There is no significant claim of individual liberty being advanced, and nor is there even a claim of a major misallocation of powers between levels of government.

Neither the challengers nor the justices most sympathetic to their arguments have claimed that the federal government does not have the power to regulate healthcare in any number of ways (including the cherished Medicare and Medicaid programs). The challengers have even suggested that had the mandate to purchase been structured as a direct tax, rather than a tax “penalty”, it would clearly be constitutional. The idea that a major act of Congress could fall based on such hair-splitting is absurd.

What’s even worse is that, at the oral arguments, several justices could not even bother to conceal the partisan political sentiments which the implausible constitutional arguments against the PPACA are clearly meant to advance. Justice Antonin Scalia, in particular, peppered his arguments with inane Republican buzzwords used to oppose the PPACA, sounding more like a third-rate wingnut talkshow host than an associate justice of the supreme court of the United States.


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