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What Secret and Dark Threats Are Being Made to the Supreme Court?

How much does anyone believe that Obama will not go all out in the next two weeks – attacking and threatening individual members of the Supreme Court??? His disrespect for the Constitution is well known. His dream of governement running all is shown in his every action. He will attack and threaten the Supreme Court in public and more ominously he will see to it that horrible threats are made in private. This man is unlike any person we’ve seen in the White House – he’s dangerous and gets more so every day things go against him. He believes everything that goes wrong is someone else;s failure, not his own.

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It is easy to forget, and so it is important to remember, that reasonable and  conscientious people – including judges – sometimes disagree, reasonably, about  things that matter.

In recent days, several commentators and critics of the Roberts Court seem to  have forgotten this fact, perhaps because they have been confronted with the  unsettling realization that what they confidently, even smugly, took for granted  might be wrong.

Former House Speaker, California Rep. Nancy Pelosi spoke for many when she  dismissed with an “are you serious?” questions about ObamaCare, aka the  Affordable Care Act’s individual mandate, which no doubt was and is easier than  engaging the strengths of the other side’s positions and the weaknesses of one’s  own (or reading the legislation).

Now, as the end of the Court’s term approaches and after in the aftermath of  several days of tough questioning and powerful counter-arguments before the  Court in March, the Act’s supporters are nervous.

Some are turning on John Roberts, the Chief Justice of the United States, and  engaging in an unattractive and unworthy condition-the-environment campaign to  pre-delegitimize a feared ruling against the Act. Such a ruling, they say, would  and could only be a partisan, divisive, and “activist” one, one that would  undermine the Court’s public standing and tarnish irreparably the Chief  Justice’s reputation and record.

This effort to influence the Chief Justice through pre-fabricated outrage is  misguided, troubling, and transparent.

Let’s concede, for argument’s sake, that intelligent jurists who take  seriously their oath and obligations could conclude that the individual mandate  is a constitutionally permissible exercise of legislative power by Congress.   After all, for the last seventy years or so, with a few exceptions, the  Court has deferred to Congress about the reach of this power.  The  individual mandate is novel, maybe even unprecedented, but – one could argue – that does not mean that it’s unconstitutional.

Fair enough.

However, the Chief Justice’s anticipatory accusers claim a lot more than  this.  They insist – indeed, it seems they cannot imagine that any  intelligent and appropriately trained lawyer could think otherwise – that it  would be not only incorrect, but illegitimate, to conclude that  the mandate goes too far and that it is the Court’s duty to say so.

The accusers are wrong.

To understand why, take a step back to junior-high civics:  Our  Constitution is not only a blueprint for our national government, it is also,  and fundamentally, an act of “We the People” that grants, separates, allocates,  and limits that government’s power.  The national government has, but only  has, the power that the Constitution gives it, and Congress only has the powers  that are set out in Article One of the Constitution.  These are expansive,  true, but they are not infinite; their limits and boundaries are not always  clear, but they do exist.  And, one of the powers the Constitution gives to  the Court – one of the duties that it imposes on the Court – is, in appropriate “cases” and “controversies,” to identify and enforce those limits.

The critics warning the Chief Justice to toe their line charge that striking  down the mandate would be “activist,” but this epithet is easier to deploy than  to define. As Justice David Souter once observed, “judicial activism is  when the court rules against you.”

Almost everyone agrees that Justices should not substitute their preferences  for the law and that Congress and the president are entitled to respect and  deference by the Court, but hardly anyone believes that the Court should never  invalidate federal statutes or executive actions.

We should not want and praise a Court that strikes down government actions we  think are bad and upholds ones that we like, but rather one that invalidates  actions that actually and pretty clearly unconstitutional, whether we like them  or not, and upholds, interprets, and applies the rest.

Thoughtful and conscientious people disagree about whether the Constitution,  correctly understood, authorizes Congress to enact the individual mandate.   This question is interesting and hard, but this much is clear:  It is  wrong to imagine that the answer is obvious and that only low politics and  hackery could explain a Court ruling that the answer is “no.”

The Chief Justice took an oath to uphold the Constitution – to safeguard its  structure, enforce its boundaries, and police its limits — not to construct  crowd-pleasing unanimity at the expense of the right answer, whatever it is.   That’s what We the People should want him to do and – I have no doubt – what he will do.

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