Unless he’s trying to goose a slow news day with speculation, I have no idea why Drudge is pushing the “leak” angle. There’s nothing about it in the Reuters story he links to and, as far as I saw, nothing in O’s comments today in the Rose Garden to suggest he had inside info. If he had seized on some obscure part of last week’s arguments, like the Anti-Injunction Act, then that might have been a clue that something the media had overlooked was weighing heavily inside the Court’s own deliberations and that O had gotten wind of it. But he didn’t. He gave a straightforward pitch that, unless the Court rules his way, it’s illegitimate. I expected nothing less. Neither, I’m sure, did Anthony Kennedy, who has three months to make up his mind and therefore probably isn’t a firm yes or no yet. And, if you’ve been reading liberal pundits lately, neither did you.
Speaking of which, having endured a “train wreck” and a “plane wreck” at the Supreme Court last week, Jeffrey Toobin shakes off the trauma and joins in the left’s newfound appreciation for why judicial activism is a bad thing:
For example, the Justices had no trouble upholding the Civil Rights Act of 1964, which used the [Commerce Clause] to mandate the integration of hotels and restaurants. “It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination,” Justice Tom C. Clark wrote, for his unanimous brethren. “But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed—what means are to be employed—is within the sound and exclusive discretion of the Congress.” In other words, Justice Kennedy had it backward. The “heavy burden” is not on the defenders of the law but on its challengers. Acts of Congress, like the health-care law, are presumed to be constitutional, and it is—or should be—a grave and unusual step for unelected, unaccountable, life-tenured judges to overrule the work of the democratically elected branches of government…
It is simply not the Supreme Court’s business to be making these kinds of judgments. The awesome, and final, powers of the Justices are best exercised sparingly and with restraint. Their normal burdens of interpreting laws are heavy enough. No one expects the Justices to be making health-care policy any more than we expect them to be picking Presidents, which, it may be remembered, is not exactly their strength, either.
Rest assured, if Obama wins reelection and replaces Scalia or Kennedy with a hardcore liberal, the revered principle of judicial deference to Congress will be power-flushed down the toilet once a Republican president and legislature are in office together again. But never mind that, and never mind the fact that he sidesteps the question of whether people who aren’t participating in commerce are reachable by the Commerce Clause. He seems to be imagining here an almost conclusory deference to Congress by the Court on all things commerce. Imagine that the Court took his advice and declared that the “heavy burden” is on the states to show why Congress doesn’t have this entirely novel power to force people to buy things. What would the states have to show to convince Justice Toobin that they’d met that burden? This is a case of first impression so there’s no direct precedent that either side can point to. What argument, then, could the states theoretically make to convince Toobin that Congress had exceeded its commerce power? I’ve got a sneaking suspicion that, like so much of the left, he thinks there is no conceptual limit on the Commerce Clause except the Bill of Rights. If you can’t show that the mandate violates, say, the Establishment Clause or the Free Exercise Clause, then you’re out of luck. But that’s absurd; the whole point of enumerated powers is to set limits on what Congress can do apart from the Bill of Rights (which, of course, wasn’t even part of the Constitution originally). Within that larger context of circumscribed federal power, when you have Congress seeking to do something that it’s never done before, why should its prerogative enjoy heavy deference and not the states’?
Here’s Mark Levin unloading on The One for his comments about the Court today. Click the image to listen.