March 29, 2012


The Supreme Court should have taken a pass on Obamacare: Health care reform isn't much different from abortion or deadlocked presidential elections -- the constitutional basis for the justices weighing in on it is scant. What ever happened to judicial restraint? (David A. Kaplan, 3/29/12, Fortune)

After all the chatter about the Commerce Clause and federal power run amok, the case argued this week at the Supreme Court is pretty much just another example of losers in the political arena racing to the courthouse to undo their defeats. Just as the Court should have taken a pass on abortion, just as the Court should have left the presidential deadlock to Congress, so, too, should the justices leave health care to elected representatives.

The core problem with the justices being involved isn't so much how they in fact rule. At the end of the day, it's that they shouldn't be players in a political process. When they are, they make us a little, or a lot, less democratic. When some counter-majoritarian principles are involved -- free speech, safeguards for criminal defendants, anti-discrimination -- the Court's anti-democratic prerogatives are a valuable brake. Health care is hardly in the same category.

Conservatives love to rail about "judicial activism." Some justices themselves made it to the Court by preaching "judicial restraint" and deference to other branches of government. Now would be a fine time to see such slogans actually honored. Now would be a fine time to see the triumphalist legacy of Roe v. Wade and Bush v. Gore broken at long last. The Constitution would rejoice.

...the Court ought to be able to simply vacate the rulings of lower courts which have chosen to intervene in such cases.

Posted by at March 29, 2012 7:41 PM

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