Let me start by saying that John Roberts is a great Chief Justice of the Supreme Court. He understands what the separation of powers is supposed to mean, and he has a long track record of deference to the legislative branch as representatives of the people. And with the health care law, this is exactly what he did: he presumed the law constitutional (as is his obligation) and then he tested that presumption in the light of Congress's enumerated powers. He was also constrained by the precedent of other decisions to try to find a possible interpretation that supports its constitutionality. And that's what he did.
Our partisan fights over the role of judges and courts have obscured the tensions within the Right, broadly speaking, about what courts should do, as this points out. Libertarians construe our rights as grounded in our individual liberty, and thus, view everything that happens in the political realm as something to be judged absolutely in light of those inalienable rights. (There will be some overlap between them.) They are much more comfortable with a court system that actively strikes down anything that violates a maximal view of individual rights under the Constitution. Many conservatives, however, have feared a court system that overrides the people for the sake of some preferred policy choice. They were united in that liberals were willing to use the courts (and the Supreme Court) as a kind of super-legislature when rebuffed in Congress or some other arena. But conservatives presume that laws passed by Congress are constitutionally valid oftentimes, while others argue that Congress or the president could do something radically antithetical to liberty just as easily. And they're both right. The judicial conservatives, who urge deference to the legislature, clearly were able to bring the judicial sin of 'legislating from the bench' into the political popular lexicon. But our rights in an absolute sense were clearly in view when Justice Rehnquist, unimpressed by O'Connor's appeals to precedent in Planned Parenthood v. Casey (the last real challenge to legal abortion) pointed out that Plessy v. Ferguson ("separate but equal"/segregation) was on the books more than 90 years when the Court rightly struck it down in Brown v. Board of Education of Topeka (which desegregated public schools). Our Chief Justice is definitely saying that he is not taking responsibility for Congress writing a bad law. The libertarian strain of thought won't agree with what he did, but he never said he was an activist.
If we want this law gone, and if we want the HHS contraception mandate gone, we have only one choice: beat Obama.
Our partisan fights over the role of judges and courts have obscured the tensions within the Right, broadly speaking, about what courts should do, as this points out. Libertarians construe our rights as grounded in our individual liberty, and thus, view everything that happens in the political realm as something to be judged absolutely in light of those inalienable rights. (There will be some overlap between them.) They are much more comfortable with a court system that actively strikes down anything that violates a maximal view of individual rights under the Constitution. Many conservatives, however, have feared a court system that overrides the people for the sake of some preferred policy choice. They were united in that liberals were willing to use the courts (and the Supreme Court) as a kind of super-legislature when rebuffed in Congress or some other arena. But conservatives presume that laws passed by Congress are constitutionally valid oftentimes, while others argue that Congress or the president could do something radically antithetical to liberty just as easily. And they're both right. The judicial conservatives, who urge deference to the legislature, clearly were able to bring the judicial sin of 'legislating from the bench' into the political popular lexicon. But our rights in an absolute sense were clearly in view when Justice Rehnquist, unimpressed by O'Connor's appeals to precedent in Planned Parenthood v. Casey (the last real challenge to legal abortion) pointed out that Plessy v. Ferguson ("separate but equal"/segregation) was on the books more than 90 years when the Court rightly struck it down in Brown v. Board of Education of Topeka (which desegregated public schools). Our Chief Justice is definitely saying that he is not taking responsibility for Congress writing a bad law. The libertarian strain of thought won't agree with what he did, but he never said he was an activist.
If we want this law gone, and if we want the HHS contraception mandate gone, we have only one choice: beat Obama.
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