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Monday, April 2, 2012

Assailing the Supreme Court

The legal left echoes Newt Gingrich on judicial power.

After last week's Supreme Court argument on ObamaCare, the political left seems to be suffering a nervous breakdown. Only a week ago, the liberal consensus was that the federal mandate to buy insurance couldn't possibly be overturned. Now as panic sets in, the left has taken to mau-mauing the Justices by saying that if they overturn the mandate they'll be acting like political partisans. The High Court's very "legitimacy" will be in question, as one editorial put it—a view repeated across the liberal commentariat.

This criticism is itself political lobbying, as is clear from the fact that it mostly spares Anthony Kennedy, the likeliest swing vote. Liberals still hope Justice Kennedy will uphold all of the law, even as they audition the mauling he'll get if he joins Antonin Scalia, Samuel Alito and Clarence Thomas in the ninth level of judicial hell. Chief Justice John Roberts is also being lectured that the case will "define" his career, though in six years he has already established a record as a careful consensus builder on the Court.

Overturn any part of the law, the Justices are being told, and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And, by the way, you'll show you hate sick people—as if the Court's job is to determine health-care policy.

This is the left's echo of Newt Gingrich's threat earlier in the primary season to haul judges before Congress when it dislikes their rulings. Remember the political outrage over that one?

No doubt the Justices will ignore this transparent attempt at political intimidation, but someone should defend them against the claim that overturning the law would be "judicial activism." It's more accurate to say that failing to overturn the mandate would be dodging their duty to uphold core constitutional principles.

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