The problem for the left is that they do not have a lot of interaction with conservatives, whose intellects are often disparaged, ideas are openly mocked, and intentions regularly questioned. Conservative ideas rarely make it onto the pages of most middle- and high-brow publications of news and opinion the left frequents. So, liberals regularly find themselves surprised when their ideas face pushback.
I think that is exactly what happened with Obamacare. The attitude of President Obama (a former con law lecturer at the University of Chicago, no less!), Nancy Pelosi, and Harry Reid was very much that they are doing big, important things to help the American people, why wouldn’t that be constitutional? No less an important Democratic leader as the chairman of the House Judiciary Committee cited the (nonexistent) “good and welfare clause” to justify the mandate.
Having no intellectual sympathy for the conservative criticism of this view, they rarely encountered it on the news programs they watch, the newspapers they read every day, or the journals they peruse over the weekends. Instead, they encountered a steady drumbeat of fellow liberals echoing Kagan’s attitude: it’s a boatload of money, what the heck is the problem?
Fair points all, but look: Even I was surprised at how hostile the conservatives on the Court seemed to be towards the mandate. That’s not because I’m reading back issues of The Nation, it’s because the painful fact remains that the Supremes almost always let Congress do any ol’ thing it wants when it comes to regulating commerce. Remember the terrible, terrible Raich case? That wasn’t the Warren Court and it wasn’t a 5-4 decision. It was 2005 and it went 6-3 thanks to — ta da — Anthony Kennedy and Antonin Scalia. It came fully 10 years after the landmark Lopez case, which was supposed to herald some new golden age of limits on the Commerce Clause but hasn’t borne much fruit yet. Maybe ObamaCare is where it’ll pay off, or maybe Scalia’s point during oral arguments that “commerce” doesn’t include people who haven’t yet bought insurance will save the day. But it’s not pure leftist hallucination to think that 70 years of the Court letting Congress run wild with economic regulation might lead to them rubber-stamping the mandate too. Remember, even a conservative judicial eminence like Laurence Silberman upheld the mandate at the appellate level. I’m on record as of today in believing that the Supremes will, in fact, uphold it too on a 6-3 vote with Roberts writing a very narrow majority opinion. Can’t blame the left for being surprised that the Commerce Clause suddenly exists. Although you can, of course, blame them for dismissing conservative legal objections to the mandate simply because they’re conservative. That’ll never change — their sense of infallible intellectual superiority is too precious to them. But it’s fun to see it shaken.