Politics: A Court of Radicals

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Politics A Court of Radicals If the justices strike down Obamacare, it may have grave political implications for the court itself. By Richard L. Hasen Posted Friday, Mar 30, 2012, at 08:36 PM ET In the middle of this week's three-day health care oral argument marathon at the Supreme Court, the justices pondered how Congress would react if the court struck down the individual mandate and perhaps either part or all of the rest of the 2,700-page health care law. Justice Kennedy, recognizing that the current hyperpolarized Congress cannot get much done, asked if the court in thinking about congressional reaction to its ruling should consider "the real Congress or a hypothetical Congress." Justice Kennedy's question introduced a dose of realism into the debate. Of course the current Congress won't overcome its differences and do anything constructive if the court kills Obamacare. For the foreseeable future, the court's word on the health care law will be final. And if that word is a death knell to Obamacare, it would likely mark the end of any remaining illusions of a "hypothetical Supreme Court." You know which court I'm talking about—the one where justices act as "umpires," calling balls and strikes, discovering but not making law, acting with humility and judicial minimalism. The one which Chief Justice John Roberts promised the country at his 2005 confirmation hearing.   The smart money before the argument was on an 8-1 upholding of Obamacare. A 5-4 decision striking the law down for exceeding congressional power will reveal a "real" Supreme Court unafraid of ignoring well-established legal precedent in a favor of its own ideological preferences: It is an activist conservative court that has ... To continue reading, click here. Join the Fray: our reader discussion forum What did you think of this article? POST A MESSAGE | READ MESSAGES Also In Slate Why Does the Supreme Court Fret About Penalties for People Who Don't Buy Health Care? They Already Exist. Obama's Hot-Mic Gaffe Isn't Nearly as Embarrassing as the Republican Reaction to It Oh No! A Stock Photo of Me Is Being Used To Advertise Online Dating Services.	Advertisement
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