On what will probably be the most important and consequential high-court ruling in 13 years, since Bush v. Gore, conservatives will be cheering for their justices to violate what they tell the rest of us is their most fundamental and inviolate jurisprudential principle.
It is all those things, of course, except when it isn’t. In those instances, we’re just supposed to forget. In 2009, when the court held for white firefighter applicants who were plaintiffs in Ricci v. DeStefano, the five-member conservative majority (the usual four and Anthony Kennedy) most certainly was making new policy. And not even federal policy, but local policy. The majority, in Jeffrey Rosen’s words, invented “a new legal standard to determine when cities can throw out promotion exams that have discriminatory effects on minority firefighters.” There have been other cases. Indeed, with regard to this very health-care law, the early 2011 ruling against the law by Roger Vinson, a federal judge in Florida, was the definition of legislating from the bench…
But it’s all nonsense. It’s just finding fancy justifications for a set of desired outcomes that are driven by ideology and not by any particular consistent legal view of the world. And people know that. Therefore, if the court does overturn the ACA, if this group of five conservatives legislates from the bench and violates the central conservative legal tenet of recent American history, enough Americans will smell a rat that the decision will invite a backlash. Certainly, liberals who were never wild about it (and there are many) would find themselves suddenly angry that it was negated by these five, not to mention furious at the sight of celebrating conservatives. And to independents who weren’t fans of the bill, Barack Obama can say, “OK, it’s gone, but if your 24-year-old daughter gets thrown off your plan, or your spouse gets denied coverage because of a preexisting condition, don’t blame me. I bestowed those rights. Some other people took them away.”
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