Special Report

Let It Be (Political)

Obamacare, politics, and the modern Supreme Court.

By 3.30.12

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And in my hour of darkness
She is standing right in front of me
Speaking words of wisdom, let it be

Democratic political strategist and organizer Robert Creamer claims that overturning Obamacare would make the Supreme Court the "most activist [and] partisan in modern history."

Radical leftist MSNBC host Rachel Maddow says that the Obamacare decision "may as much be a referendum on the Supreme Court and whether or not the Roberts court is so conservatively politicized that it will make a decision to hurt the President, rather than sticking closely to precedent here."

In short, supporters of President Obama and his de facto nationalization of the health insurance industry are setting the table to blame the impending destruction of Obamacare, or at least its core "individual mandate" provision, on politics.

The Court's decision may indeed be political, but not in the way the left suggests.

The most reasonable claim of Court partisanship is against Elena Kagan who should have recused herself from this case due for involvement in the Obama administration's legal defense strategy for the law, and for her e-mailed glee at the law's passage. In any case, the idea that conservative judges appointed by prior presidents would rule based on partisan politics is liberal paranoia.

But if Democrats want to say the decision is partisan politics, I say -- quoting another famous leftist -- Let It Be.

Let the constitution at long last return to speaking words of wisdom to the "broken hearted people" of America suffering under the Obama regime's many petty tyrannies.

The Obamacare Supreme Court decision will probably be a 5-4 vote, at least on the issue of the mandate that people, as a condition of living in America, must purchase health insurance or pay a penalty.

How can it be that four black-robed judges can say with a straight face that such a law is constitutional?

It can be because the Court, while to some degree living in its own cloistered world, is also a reflection of the trend of the nation, a trend that until the rise of the Tea Party movement was distinctly in a Wilsonian direction. Woodrow Wilson, our first fully "progressive" president, called the United States Constitution "political witchcraft" and said that its meaning should be "one thing in one age, another in another." For Progressives, the rule book should be re-written whenever those who want to grow government find the game of politics not going their way.

Wilson, at least, was an intellectual; he understood what he was saying and why he was saying it. But his legacy became ever more anti-intellectual as it ran through FDR, LBJ, and Barack Obama, with a pinnacle of brain-dead anti-constitutionalism being reached in the person of Nancy Pelosi. When asked in 2009 by a reporter for CNS news "Where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?" Pelosi famously responded "Are you serious?" Her spokesman reiterated the then-Speaker of the House's contempt for our Founding documents: "You can put this on the record. That is not a serious question. "

The Supreme Court's eventual ruling will be political to the extent that Americans have too often voted for presidents and members of Congress -- mostly, but not exclusively Democrats -- whose relationship to the Constitution ranges from ignorance to contempt, their oaths of office soon forgotten as their words waft away in the self-important breeze of their colleagues' hot air.

Thanks to Democrats' massive overreach with Obamacare, Americans are being reminded that there is a Constitution, and that it matters as something more than an item on an 8th grade civics class exam -- to be forgotten, like most politicians' oaths, right after the test.

Is it not remarkable that there are polls being done (such as by Reason, The Hill, and Gallup) asking Americans whether they consider the Obamacare mandate to be constitutional? Is there not a hint of a new American awakening in the survey results, with the Reason poll finding twice as many Americans believing the mandate unconstitutional as believe it permissible? For those who cry, "But Reason is a libertarian organization; of course their poll reaches that result," I point to Gallup's even more dramatic results: 72 percent of those surveyed believed the mandate is unconstitutional, to only 20 percent who believe it is permitted under our Founding law. In the Gallup survey, even a majority of Democrats believe the mandate is unconstitutional.

Does it not offer some hope for reviving our republic that The Hill reports "even the youngest voters oppose the law (47 percent to 42 percent among those aged 18-39)"? And who would have thought that "76 percent of those polled said they'd be paying more attention this week to the Supreme Court arguments than to the NCAA basketball tournament," especially in a nation whose president so obviously does not share that same order of priorities?

It may be that the Supreme Court's decision is political, but it will not be in the sense of the population decrying Republican judges overturning Democrat legislation. Instead, it will be in focusing the minds of voters on the importance of candidates who at least offer a pretense of respect to our Constitution -- which should serve as a lesson and warning to politicians of both parties.

Voters are being reminded -- in a way they haven't been in recent American history -- that rule books exist for a reason, and that ignoring them, or changing them mid-game, is a perilous path.

This reminder poses existential electoral risk to Democratic candidates in 2012, which is why the former chairman of Virginia's Democratic Party is pleading, "Chief Justice Roberts, please put off [the] ObamaCare decision until 2013." Arguing that a "bitter Supreme Court split" will harm the Court's already falling public opinion and add fuel to an already red-hot political climate, Paul Goldman suggests that "The Supremes need to step back. There is no pressing need for a quick decision. Let Americans first 'have it out' in the presidential campaign. It is time to trust the people for a change."

But nobody is buying the Democrats' frenzied anticipatory spin. After all, even Mr. Goldman recognizes that "nearly all Republicans, many Democrats and independents are also opposed to the health care law." He makes the amusing argument, summoning the ghost of Oliver Wendell Holmes, that should the Court uphold the mandate in the face of the public's uniform opposition, it would "threaten respect for the law." If a brain could be twisted into knots, Mr. Goldman's would be of a most Gordian sort, with each rhetorical twist locking him further into living proof that Democrats recognize they are in a no-win situation.

And therefore Democrats scream "politics!" doing more to weaken the public's approval of the nation's highest court than anything the Court itself will do (at least this year). Democrats decry the unfairness of it, warn of people dying in the streets, and show ads of an ersatz Paul Ryan pushing grandma off a cliff, all in order to distract us from the fact that while Americans were losing millions of jobs, President Obama and his congressional henchmen spent the better part of two years jamming an unpopular, unconstitutional law down our throats while lecturing us that "we have to pass the bill so you can find out what is in it."

To the extent that the Supreme Court is overly political, the blame is to be laid at the feet of the Democratic Party's hero, Franklin Delano Roosevelt, a man whose policies turned a bad recession into the Great Depression much as Obama's policies have caused the weakest recovery from an economic downturn in the ensuing three generations.

When, in the mid-1930s, the Supreme Court struck down eight of his New Deal programs as unconstitutional, Roosevelt then suggested a "reform" plan, by which he meant to increase the number of justices from nine to as many as fifteen by adding a seat on the Court for every justice who was over 70 years old, had served for at least ten years, and refused the administration's oh-so-gentle suggestion to retire. (Little discussed is that FDR's ageist model was also meant to apply to lower federal courts.)

As author Barbara Ann Perry notes of Americans' view of the Supreme Court in the mid-1930s, "when Americans did contemplate the Court, they often saw it inextricably bound with the Constitution as one and the same. To the extent that Americans developed reverence for the Constitution, they developed reverence for the Court."

Thus, Roosevelt's March 9, 1937 "fireside chat" (well worth five minutes of your time) in support of his court-packing plan was the first mass media-based overt politicization of the Court. It was a watershed moment in the beginning of a Democrat-supported crusade to damage public opinion of what had been considered the "least dangerous" branch of the federal government.

Roosevelt's divisive words can be imagined coming from any of today's Democratic Party leaders in the same situation, at least if they were a little more clever: "This plan will save our national constitution from hardening of the judicial arteries." He went on to demonize the term "packing the court," suggesting that his self-serving explanation should "end all honest misunderstanding of my purposes." Whether in 1937 or 2012, disagreement with any liberal who claims good intentions must perforce be dishonest.

By trying -- and essentially succeeding, even without the court-packing scheme -- to force the Court to go along with the political will of the executive branch, FDR did permanent damage to the Court and the nation, arguably turning the Court into the most dangerous branch of our government.

However, even during those days of reverence for FDR, and an understandable "please do something, anything" attitude of Americans during the Great Depression, Americans sided with the Court rather than with Roosevelt -- just as it will side with the Court rather than with Barack Obama in 2012 despite 75 years of Democrat assaults on the Court's political independence.

Fascinating research by Ohio State University Professor of Political Science Gregory Caldeira into public opinion during the first half of 1937 shows that opposition to the proposed "reform" averaged 46 percent, versus average support of 39 percent, with the high watermark for support being right after FDR's cynical fireside chat.

It was a remarkably narrow range of opinion for such a contentious issue, yet it nicely mirrors the Rasmussen polling results on Obamacare over the last two years: In roughly 100 polls taken over that time, the percentage of Americans who support repeal of the law has been between 51 percent and 60 percent all but four times. Of those four, one was slightly below that range and three were slightly above it.

What makes the comparison worse for President Obama and his supporters is that, unlike the media's neutral-to-negative reaction to FDR's court-packing plan, Obamacare has had the unflinching support of the New York Times, network news broadcasts, and other media outlets. A typical example: as the Media Research Center reported, of CNN's Soledad O'Brien's four Wednesday guests to discuss the Obamacare hearings at the Supreme Court, one was a Democratic senator, one a Democratic congressman, one an Obama campaign official, and one a lonely anti-mandate lawyer.

Despite the media reinforcements, Obamacare is failing in public opinion and its lynchpin policy provision, the individual mandate, looks likely to fail in a Supreme Court opinion.

Democrats, knowing this, have little choice in order to save their political hides other than to scream "politics" from the rooftop of the Supreme Court. But this is a tactic destined to backfire.

As Americans are reminded how politics shapes our highest court, they will be attracted toward presidential candidates who will appoint judges who follow the Constitution's written words and clear intent, and toward congressional candidates who will support such judges as part of an overall renewal of American constitutional consciousness.

It is a welcome and belated renewal, but one which, if history is any lesson, may prove all too fleeting. If it takes a "political" Supreme Court to bring us back to a public which takes the Constitution seriously, I say Let It Be.

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About the Author
Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver's NewsRadio 850 KOA on Saturday mornings from 6 AM to 9 AM. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.