SCOTUS, Obamacare, And The Limits Of Litigation


Put not your trust in princes. Or judges.  VDARE.com did not take a position on Obamacare (except to note that is yet another subsidy to immigration, both legal and illegal). We don’t even care to debate the legal intricacies of the June 28 Supreme Court decision upholding Obamacare.  But we do think this development exposes the weakness of the strategy, much beloved by some of our allies, of using litigation to effect political change.


The plain fact is that the courts can’t be relied upon—to reach any particular conclusion. This is of course not news to practicing lawyers, whose utter cynicism about judges and their foibles was deeply disquieting to me when I first started to write about juridicial questions as a staffer for Senator Orrin Hatch, then as now a Judiciary Committee member, more than thirty years ago.


But, for example, I didn’t then know about the astonishingly unethical collusion of Supreme Court Justice Felix Frankfurter with Department of Justice lawyer Philip Elman to produce the epochal 1954 Brown vs. Board desegregation decision, which as Paul Craig Roberts has said, “effectively ended constitutional law by teaching a generation of judges that the Constitution has no meaning apart from the judiciary`s subjective feelings about social policy.”


Perhaps we will eventually find out what occult force produced Chief Justice John Roberts` unexpected, and apparently last-minute, shift. But it’s worth noting that observers widely assume that he simply buckled under public i.e. non-jurisprudential pressure. (See Did Roberts Give In To Obama’s Bullying, by Joel B. Pollak, The Daily Blaze, June 28, 2010) The obvious parallel: the famous “switch in time that saved nine”—the Supreme Court’s capitulation to the New Deal.


This is further proof of VDARE.com’s long-standing contention that only grass-roots pressure, and not inside-the-Beltway machinations, will bring about patriotic immigration reform.


In the case of Obamacare, some of this public pressure has been particularly revealing. Thus even some of VDARE.com’s friends have worried that our interest in the impeachment of federal judges for wrong decisions, while technically correct, was so far out of the conventional wisdom as to discredit us. But guess what? As soon as Obamacare appeared to be in jeopardy, liberals rediscovered the impeachment power. Anticipating a possible defeat, the Daily Beast`s David R. Dow proposed impeaching the Supreme Court, and Jonathan Turley proposed an FDR-like court-packing scheme in the Washington Post.


Somebody has to propose new ideas and we nominate us. And now that our advocacy of impeachment has been vindicated, we look forward to many entertaining cases in which Congress uses impeachment to reassert democratic rule.


Although many Americans still view the courts in a naïve Wizard of Oz way, it has long been obvious to any close observer that liberal judges are merely Leftist Commissars, legislating their policy preference without any regard to what might laughingly be described as the law. Indeed, that’s exactly what the fashionable theory of “legal realism” says they should do.


But what is significant about the NFIB v. Sebelius [PDF] decision is that it is final proof that “conservative” (or at any rate Republican) judges are not the antidote. From Earl Warren through David Souter, Sandra Day O’Connor and Anthony Kennedy to John Roberts, an ignominious procession of Republican nominees have shown they lack the independence, integrity, intelligence and courage to stand up to the pressures that are brought to bear on them. The pattern is too clear to be ignored.


This means that the long-time last-ditch argument of Republican partisans, that at least their most recent useless Presidential nominee will not appoint liberal Commissars to the bench, is less compelling than it might appear.


Where is Newt Gingrich when you need him? Whatever else you can say about the former Speaker of the House—and we said a lot—in his Presidential run Gingrich single-handedly raised the issue of legislating judges, the key force behind America’s ongoing cultural Marxist revolution—and an immense problem for patriotic immigration reform legislation (exactly as I predicted in Alien Nation).  [Page 260]


Gingrich wanted legislators to counteract judicial imperialism. His idea caused a lot of harrumphing, even from self-proclaimed conservatives (for example, see A conservative worries: Will Gingrich return America to the days of King George?, by Rodney K. Smith, Christian Science Monitor, February 1, 2012. But of course Gingrich was right.


The traditional remedy to judicial imperialism: appoint judges who actually believe in the law. This was the answer I supported in my October 1981 Harper’s Magazine article, Supreme Irony: The Court Of Last Resort.


But that was thirty years, and five Republican Administrations, ago. It just hasn’t worked. Indeed, Republican Senators were wholly unable to mount an effective opposition to Obama Supreme Court selections Sonia Sotomayor and Elena Kagan, although both were plainly just liberal Commissars.


On VDARE.com, we have discussed other remedies: jurisdiction-stripping under Article III, Section 2 of the Constitution, and (my personal favorite!) impeachment.


Occasionally our friends demur that, if patriotic forces had the votes to enact these sorts of measures, they wouldn’t need to—they could proceed straight to substantive reform: an immigration moratorium etc.


But the entrenched liberal judiciary would still have to be broken.


And that can only be done through politics—a relentless series of up-or-down votes that forces elected officials, and judges, to take responsibility for their actions.