|Supremes Won't Save GOP From Itself on Obamacare|
by David Frum
All or nothing.
That has been the dominant Republican approach to Obamacare from the start, and it is the dominant Republican approach today.
In Congress, this approach led to the result: "Nothing."
Now conservative challengers are hoping the Supreme Court will step in. And who knows? Maybe the justices are feeling bold. Maybe they are ready to expose themselves again to the fiercest partisan criticism since Bush v. Gore, or even fiercer.
I'm not a Court-watcher, and have no expertise to offer, but just going with my gut: I doubt it. Even though the Solicitor General reportedly choked today, that doesn't change the fact that the conservatives on the Court have spent most of their intellectual lives railing against judicial activism.
Here for example is Justice Antonin Scalia writing in dissent in the Virginia Military Institute case of 1996:
The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men's military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent.
If you have said over and over again, in writing, that you object to judges writing their policy preference into the Constitution, you have to wince a little at the invitation to write your own.
Especially when the principle on which you are invited to reverse yourself—the distinction between economic "activity" and "inactivity"—is likely to be the laugh of the law schools over the next 100 years.
My uninformed guess: the ACA prevails, and probably not by a narrow margin.