Between the Lines: Can conservative justices do something they should abhor?

"Judicial nominations should be treated the same regardless of which party controls the White House or the U.S. Senate. I look forward to reviewing the backgrounds and qualifications of all of the judicial nominees sent to the U.S. Senate for consideration. I believe that these nominees should abide by and apply the rule of law, instead of becoming activist judges who try and create law. I take very seriously the role that the U.S. Senate has when it comes to the Constitutional responsibility of "advise and consent" concerning judicial nominees." (Emphasis mine, from Sen. John Thune's web page, as he states his judicial nominating philosophy).

I am hardly a legal expert. If I lived in Washington, DC, I would be qualified to march on the steps of the Supreme Court building as justices hear arguments from true legal experts on the constitutionality of the Affordable Care Act, better known as Obamacare.

I know how to carry a sign. I could likely even spell all of the words correctly. I do not, however, have the slightest idea of how to mount even the simplest legal challenge.

I prefer to observe. In this case, from afar.

My current grasp of the situation is this – there are many Americans, of all political stripes, who not only don't like Obamacare, but also believe it is unconstitutional.

I'm about to sound a bit like a lawyer. That's because I'm simply repeating something I read in a Huffington Post article that I think explains what is going on using words that you and I can understand.

It's something like this (the wording from the news article is in quotes): "States have plenary authority to legislate on matters of public policy. The national government, however, is a government of limited powers. It cannot constitutionally act unless the Constitution authorizes it to do so.

So, the central question in the case now pending before the Supreme Court is whether the Constitution grants Congress the authority to require individuals to have health insurance. Opponents of the law argue that it exceeds the legitimate authority of the national government.

The government defends the constitutionality of the individual mandate on the basis of the Commerce Clause of the Constitution, which provides in Article I, Section 8, that Congress shall have the power 'to regulate Commerce … among the several States.'"

A lot of the people who don't like Obamacare are conservatives. Our senator, John Thune, doesn't like it. Neither does our member of Congress, Kristi Noem. They cite all sorts of reasons for their dislike of the Affordable Care Act. It's easy to imagine that John and Kristi are hoping the high court will at least find portions of the act to be unconstitutional.

As I sit here in my office, far, far away from the legal wrangling in Washington, I can't help but observe that, should the Supreme Court eventually strike down all or parts of Obamacare, Kristi and John may likely celebrate.

But for such a joyful reaction to occur, Kristi and John will have to hoping with all of their might in the coming weeks that justices do something that they both absolutely abhor.

The justices will have to (cue dramatic music here) "legislate from the bench."

The photos of picketers and protestors marching outside the Supreme Court building this week seem just a bit silly.

But what's truly absurd about the current situation is that the conservative movement in this country, who made Sonia Sotomayor during her confirmation hearing seem like some crazy woman who was only interested in practicing judicial activism from the high court bench, is now wishing with all of its heart (their hearts, whatever) that she will.

Obamacare may be hundreds and hundreds of pages of legislation that most people like me can't begin to understand.

One thing became clear this week. Even to a far away observer. While awaiting the eventual court decision on Obamacare, conservatives will be cheering for their justices to violate what they tell the rest of us is their most fundamental and inviolate jurisprudential principle. (Thank you, thesaurus).

Let's pretend that I understand Obamacare, and with this vast knowledge, I really dislike it, and hope the justices find it unconstitutional. Oh, and let's pretend I'm conservative, too.

I don't think I'd rush out and buy party balloons and noisemakers if the court ruled against the Affordable Care Act.

Because what would have just occurred is five conservative justices legislating from the bench – a violation of a central conservative legal tenet of recent American history. It wouldn't take long for Americans to smell a rat.

 Liberals who were never wild about the law (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.

Other Americans who aren't highly political but nonetheless weren't fans of the bill, would likely be told by the president, "OK, Obamacare is 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."

Who knows? Maybe President Obama would be better off politically by losing this case. Why do I have this feeling, however, that our country would not be better off?

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