Twitter lends itself to a candor that politicos sidestep in person. Take DNC executive director Patrick Gaspard who hastily posted after SCOTUS’s health care ruling: “It’s constitutional. Bitches.”
Gaspard later rescinded his comment, but his saucy blurt revealed a smugness within the liberal establishment that had arisen out of NFIB vs. Sebelius. To some extent, this smugness was justified: not only had the ruling upheld ‘Obamacare,’ but it had nearly obliterated the roots of the GOP’s supposedly ‘restrained’ judicial philosophy. And had Gaspard a few more moments to explore the source of his satisfaction, his tweet would have likely expressed the following message:
You conservatives – to use a more dignified label - hosted a primary fraught with anti-judicial rhetoric. You decried judicial activism, and claimed that the judiciary had overstepped its bounds. You did this while hypocritically filing dozens of lawsuits through twenty-six state governments in an effort to induce the Supreme Court to overpower the executive and legislative branches. And in the end, not only did you lose, your loss was a function of your own ideology! The Chief Justice cited restraint and humility as the primary reason he sided with the Left. And the only activist in the court seemed to be the anti-Obama ranting Antonin Scalia.
Yes, the swing vote was triggered by a reactionary, rather than an activist impulse. And many of the conservatives that disagreed with the ruling found themselves supporting the judicial activism, or at least the judicial robustness, that they had once deplored.
To be clear, it had always been the ‘activist’ impulse that riled conservatives. During the primary debates, Newt Gingrich called activist federal judges “radically anti-American,” and the candidates took turns railing on the famously liberal Ninth Circuit Court of Appeals. Even Gingrich’s idea of subpoenaing justices briefly gained traction.
In the early spring, President Obama recognized a paradox within this anti-activist bent, and he tactfully pointed it out in April:
I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, [healthcare] is a good example.
At the time of that comment, Republicans, led by Senator Orrin Hatch (UT), lambasted Obama claiming that he was attempting to manipulate the courts. But regardless of Obama’s intentions, his assessment was spot on. In his majority opinion, Roberts repeatedly cited the importance of deferring to the elected legislature, and of finding an act constitutional whenever possible. He spoke of judicial humility at his confirmation hearing, and, since the latest ruling, legal experts have compared him to reserved conservative legal scholar Robert Bork. The right-wing Daily Caller made this concession and Nick Gillespie, editor-in-chief of the libertarian magazine Reason wrote:
Today’s conservatives frequently complain about the dangers of judicial activism. Perhaps now they’ll be more alert to the dangers of judicial restraint.
When we read the Supremes’ decision and accept the educated commentary, even that of libertarians, we realize that conservatives can no longer lay claim to a single, uniform judicial philosophy. Rather, Republicans, like Democrats, are now disciples only of that judicial approach which suits their legislative agenda, and in the ACA case, its was activism that met the GOP’s needs. So instead of denouncing ‘activist’ courts as the corrupted instruments of the Left or squabbling over the partisan abuses of the judiciary, we best remember that both parties are guilty parties in the crime of convenience.
Image credit: Slate.com