The NYTimes put together a cool graphic showing the makeup of the Supreme Court majorities over recent years in which one of the conservatives has joined the four liberals.
There have been 30 instances of this. Not surprisingly, Justice Anthony Kennedy was the decisive 5th vote in 25 of the 30 cases. Yesterday’s ruling was the first time Chief Justice Roberts provided the single conservative vote to create such a coalition. Clarence Thomas and Antonin Scalia have each done it twice. Samuel Alito has never done it.
The fact that there are 30 such instances should chasten shallow liberal thinking that tends to see the five Republican appointees as a solid bloc. They do stray. Click through to the graphic if you want to see which cases.
My buddy Doug Tice, the Strib’s op-ed editor, made a similar argument from the opposite direction. In the big cases that ended the recent term, he found several interesting instances in which members of the conservative bloc broke ranks and voted for relatively liberal rulings. But the court’s four liberals voted as a bloc in every instance. One of the advantages I find of having smart, well-informed, fair-minded, fact-oriented conservatives as friends, is that it forces me to directly confront real facts and reasonable arguments from outside the liberal consensus.
(By the way, I don’t know many other examples of analysts who got this right, but Tice also wrote a column, in the week after the oral argument in the Obamacare case, declaring that the mandate is really a tax in disguise and predicting that this could be the basis the court might use to uphold the law. Here’s a snippet from that column:
“Whatever you call it, the thing is a tax — a tax you don’t have to pay if you have health insurance. Considered as a tax with an exemption, it’s hard to see why the mandate is any more constitutionally controversial than all the other “provisions” under which Americans get a tax break — by purchasing a fuel-efficient car, or energy-conserving windows, or (at certain times) a house, or paying tuition, or giving money to charity, or many other favored expenditures.
The tax dodge, if you will, may prove to be a loophole big enough to save Obamacare. I don’t how the court will rule (and despite all the predictions you’ve heard, neither does anybody else, except maybe the justices). But don’t be surprised if at least a few Supremes cut through the malarkey, proclaim the “provision” a tax in a dime-store disguise.”)
Of course, the opposite of having dialogue with smart, rational, factual conservatives is having Rep. Michele Bachmann displaying the symptoms of what might be called Obamacare derangement syndrome. Bachmann called yesterday’s ruling “schizophrenic” and accused the Supremes of “judicial activism.” This stands the traditional conservative definition of the term on its head.
Judicial activism used to be a court finding an excuse to strike down a law, imposing the (unelected) justices’ policy preference over that of the elected branches that are supposed to be making policy. The opposite of judicial activism — what conservatives used to call “judicial modesty,” or “restraint” — used to be looking for a reasonable constitutional basis to uphold a law, if you could find one, out of deference to the elected branches. Apparently, the definition has been rearranged.
On her congressional website, Bachmann declared after the ruling that repealing Obamacre was more urgent than ever because:
“Every American should have the opportunity to provide health care for themselves and their family and the freedom to choose the plan that’s best for them. Health care reforms should ensure families and doctors make health care decisions – not Washington bureaucrats and politicians. Millions of Americans are still without access to affordable health care. The Supreme Court’s decision didn’t change that. Americans deserve real market based reforms, not big government, to increase access to the greatest health care system in the world.”
If you deconstructed that short statement, you would find easy basis for challenging almost every syllable. But my favorite is the crescendo about the greatest health care system in the world. That always gets the crowds applauding, but is Bachmann aware that the United States, compared to all other industrialized nations, has the most expensive health care system, the lowest life expectancy, the highest infant mortality rate and, of course, by a huge margin, the largest portion of its population uninsured?