Until March it apparently didn’t occur to anyone on the legal Left that the actual Constitution was still relevant to government. Judges had been zealously ignoring the nation’s basic law while aiding and abetting the expansion of the state for decades, so why should they start interpreting the Constitution now? Then came the legal challenge to ObamaCare.
Skeptical questions from justices during the oral arguments in March alerted even advocates of a liberal “everything goes” jurisprudence that this court was no longer willing to simply rubber stamp every government attempt to do more. Swing Justice Anthony Kennedy acknowledged that the Obama administration’s health insurance mandate “changes the relationship of the federal government to the individual in a very fundamental way.”
Upon learning that the justices were not guaranteed to vote left, President Barack Obama led a chorus of denunciations of judicial “activism.” For years liberal political activists relied on jurists to impose liberal values and policies whenever the electorate resisted—like Roe v. Wade, which struck down every abortion law in the nation based on vacuous emanations from newly discovered penumbras of long established constitutional provisions. It was an extraordinary performance, with the high court acting like a continuing constitutional convention which could simultaneously propose and ratify amendments. There could have been no more “activist” a decision, but the legal Left largely cheered the result. Over the years the high court has tossed out hundreds of federal and state enactments.
Now, however, the same activists are shocked, shocked to think that the same jurists might strike down ObamaCare as exceeding the federal government’s power. That prospect led to a cacophony of wailing and howling, with demands for judicial reform.
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