There appears to be little reason for the Supreme Court to strike down the Affordable Care Act. As Ronald Reagan’s former Solicitor General, Charles Fried, said after the oral arguments, the legal rationale used by opponents of the law was “beneath contempt,” but should the Justices accept it, they would be breaking nearly two hundred years of precedent and writing new meaning into the Constitution.
That would be judicial activism, which, ironically, happens to be a favorite line of attack for Republicans against liberal justices. For example:
REP. STEVE KING (R-IA): If we’re going to respect judge-made law and stop praying in our public schools, that was the beginning of the judicial activism that’s begun to break down this civilization, and this culture.
SEN. JOHN CORNYN (R-TX): Unelected and serving with lifetime tenure, and substituting their view for the views of the people’s…the people and their elected representatives. That’s not the way our democracy is supposed to work.
SEN. CHUCK GRASSLEY (R-IA): Judges are not policymakers. That’s what we are in the Congress of the United States. Judges are called on to decide the facts and to apply the law.
As E.J. Dionne wrote of the Court’s deliberations, “It fell to the court’s liberals — the so-called ‘judicial activists,’ remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.”
- Zachary Bernstein