Why Were Liberals So Surprised By the Supreme Court?

By: sebastianjer , 11:06 AM GMT on March 29, 2012

Why Were Liberals So Surprised By the Supreme Court?

Jay Cost

This week has really reminded me of Election Day 2004. Liberals, then, were just plain convinced John Kerry was going to be elected president, so much so Bob Shrum actually called Kerry, “Mr. President.” The left had convinced itself Bush was unpopular, Kerry had closed the deal, andeverything was swinging his way in the final week. So, when the early, unweighted exit polls came up Tuesday afternoon, they were exuberant.


I imagine a lot of liberals felt a similar letdown reading the transcript of Tuesday’s debate on Obamacare. Almost immediately Justices Scalia and Kennedy jump in with tough questions, with the latter quickly getting to the heart of the matter: “Can you create commerce in order to regulate it?”


The Court might very well uphold the law, but it will not nearly be the slamdunk that almost all liberals thought it would be. Why did the left get it so wrong?

It’s important to keep in mind that the concept of governmental limits is something that many liberals do not accept, at least not beyond the Bill of Rights (minus the 2nd and 10th Amendments, of course!). For a century, the progressive/liberal attitude has been: we want to make things better, so why are you bothering us with these antiquated notions of enumerated powers and federalism? Or, as Justice Kagan put it today:

The Federal government is here saying, we are giving you a boatload of money. There are no -- there's no matching funds requirement, there are no extraneous conditions attached to it, it's just a boatload of Federal money for you to take and spend on poor people's healthcare. It doesn't sound coercive to me, I have to tell you.

Of course, not everybody sees things this way. There are a substantial number of people – conservatives – who raise a skeptical eyebrow whenever a person in a gray suit knocks on the door and says, “I’m from the government and I’m here to help.”

The problem for the left is that they do not have a lot of interaction with conservatives, whose intellects are often disparaged, ideas are openly mocked, and intentions regularly questioned. Conservative ideas rarely make it onto the pages of most middle- and high-brow publications of news and opinion the left frequents. So, liberals regularly find themselves surprised when their ideas face pushback.

I think that is exactly what happened with Obamacare. The attitude of President Obama (a former con law lecturer at the University of Chicago, no less!), Nancy Pelosi, and Harry Reid was very much that they are doing big, important things to help the American people, why wouldn’t that be constitutional? No less an important Democratic leader as the chairman of the House Judiciary Committee cited the (nonexistent) “good and welfare clause” to justify the mandate.

Having no intellectual sympathy for the conservative criticism of this view, they rarely encountered it on the news programs they watch, the newspapers they read every day, or the journals they peruse over the weekends. Instead, they encountered a steady drumbeat of fellow liberals echoing Kagan’s attitude: it’s a boatload of money, what the heck is the problem?

Then, insofar as they encountered conservative pushback, they mostly ignored it.

They mostly ignored the cases from the 1990s – namely Morrison and Lopez – where the Supreme Court put limits on what Congress could do under the Commerce clause. Insofar as they did pay attention to these cases, it was only to insist that they did not apply to Obamacare. They never stopped to think that maybe the lesson of Morrison and Lopez is that the conservatives on the Court took seriously the idea of enumerated (and therefore limited) powers, and so maybe a novel device like an individual mandate would not be a slam dunk for a Court that now has a 5-4 conservative bent.

They also ignored a 2009 report from the Congressional Research Service report that warned:

One could argue…whether a requirement to purchase health insurance is really a regulation of an economic activity or enterprise, if individuals who would be required to purchase health insurance are not, but for this regulation, a part of the health insurance market…This is a novel issue: whether Congress can use its Commerce Clause authority to require a person to buy a good or a service and whether this type of required participation can be considered economic activity.

They also ignored the 11th Circuit Court decision that struck down Obamacare with a carefully constructed, 300-page decision that won the endorsement of a Clinton appointee.

They preferred to cite the 6th Circuit’s upholding of the bill, in particular conservative Judge Jeffrey Sutton’s concurrence, but they ignored his many exhortations to the Supreme Court to bring some clarity to the Commerce Clause, to set some limits to congressional power (by, for instance, striking down the law) or quit saying there are limits. They did the same when the D.C. Circuit upheld the law, and Judge Laurence Silberman similarly suggested that this was a matter ultimately for the Supreme Court to issue some guidance..

So that is why the left was so surprised. They have no intellectual sympathy for the positions articulated by the conservatives on the Supreme Court. Those opinions rarely if ever make it into their news reports, newspapers, or magazines, and insofar as they were confronted with these contrary views they just ignored them.

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8. NumberWise
3:34 AM GMT on March 30, 2012
Afterburner - brilliant! Thank you for posting that, Jer.
Member Since: October 22, 2005 Posts: 0 Comments: 1789
7. sebastianjer
3:22 AM GMT on March 30, 2012
Member Since: August 26, 2005 Posts: 1030 Comments: 11197
6. sebastianjer
8:08 PM GMT on March 29, 2012
Afternoon everyone
Just getting back in thanks for stopping by and posting

Member Since: August 26, 2005 Posts: 1030 Comments: 11197
5. theshepherd
5:45 PM GMT on March 29, 2012
@ 4

Sure Nancy, no problem.

And here's another example of the audacity and arrogance that Progressives cling to as their only defense. When will the MSM ever actually say or print Sophism? Oh, I forgot. They don't teach that word in school now, Now they just call it Debate.

Afterall, doesn't everyone "get it"? They don't care what any of you think.

Member Since: September 11, 2008 Posts: 10 Comments: 10229
4. Ossqss
4:04 PM GMT on March 29, 2012
Member Since: June 12, 2005 Posts: 6 Comments: 8192
3. NavarreMark
3:22 PM GMT on March 29, 2012
I wonder how many Solicitor Generals have been openly laughed at in the Supreme Court. Poor guy. It can be tough defending the indefensable.
Member Since: September 2, 2010 Posts: 0 Comments: 4010
2. seflagamma
12:36 PM GMT on March 29, 2012
Good morning Jer!
Member Since: August 29, 2005 Posts: 307 Comments: 41087
1. sebastianjer
11:24 AM GMT on March 29, 2012

Reeling White House Steps Into Health Care Breach

The administration defends the Affordable Care Act on partisan, not constitutional, grounds.

By Major Garrett

The Obama White House, beset by a barrage of liberal criticism over an allegedly inept defense of its signature domestic policy achievement, on Wednesday defended the health care law's constitutionality not on legal grounds but on purely partisan ones.

“The individual-responsibility provision was originally a Republican idea,” said White House deputy press secretary Josh Earnest at the daily briefing, altering the common terminology “individual mandate” to the theoretically more politically palatable “individual responsibility.”
Earnest noted that “conservative Republicans” at the Heritage Foundation originally came up with the concept of the mandate in 1988 and 1990. Conservatives have since said the individual mandate was a response and alternative to a mandate on insurance companies during debate over the approach to universal health care in Bill Clinton’s presidency. In truth, it was conceived as a policy alternative long before Clinton was elected.

Earnest also claimed that Obama's Affordable Care Act drew its policy inspiration from GOP front-runner Mitt Romney’s health care law in Massachusetts. Earnest called Obama’s national health care law a “bipartisan idea” designed to confront “difficult health care challenges.”

That’s a purely political argument to a constitutional question. Earnest offered no defense along the lines of the precedential history of Congress and the commerce clause. It is the reach and scope of commerce-clause authority that is at the heart of the high court’s scrutiny of the health care law.

No one, Earnest insisted, should read anything into the hostile questioning that Solicitor General Donald Verrilli received during the review of the constitutionality of the individual mandate, the subject of a full day of high-court inquiry.

In that vein, it was largely the conservative Supreme Court justices who trained their fire on the beleaguered Verrilli.

Earnest defended Verrilli, whose performance before the Court has been widely panned by liberals who fear his allegedly inexpert advocacy may endanger the law. Others have also come to Verrilli’s defense.

Earnest said Verrilli gave a “very solid performance. That’s just a fact.”

The White House has seen this movie before: a press corps in a lather about what may happen to knock the administration off its preferred course of action. But three days of high-court drama did put President Obama under siege as the underlying constitutional justification of the health care law, long questioned in polling data, is now under intense scrutiny.

That scrutiny may lead to the law’s undoing, and in its first attempt this week to justify the law, the White House chose partisan arguments as a response to constitutional study. Whether it intended to or not, the

White House gave voice to critics who contend the law is rooted in outcomes -- expanded access to insurance coverage and a variety of health care benefits -- rather than adhering to traditional definitions of federal power and the commerce clause.
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