Just a few days ago, most people (including me) thought that while Thomas, Scalia, and Alito might display their naked partisanship in deciding the fate of the Affordable Care Act, both Anthony Kennedy and Chief Justice John Roberts, concerned with maintaining the Court's legitimacy and integrity, would surely uphold the law. And now after the spectacle the justices made of themselves for three days, everyone seems certain that the law is doomed, in whole or in part. And it really was a spectacle, one in which, as E.J. Dionne says, the "conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee." What, you thought the Supreme Court's job wasn't to decide if they personally like a particular law, but whether it's constitutional? How quaint. Justice Scalia even asked whether if the government can regulate the insurance industry, it can make you buy broccoli, as though he had been watching Sean Hannity the night before and said, "Oo, that's clever-I'm going to use that one!"
So let me turn around the question conservatives have been asking about the mandate. If the Supreme Court will strike down this law that every sane and knowledgeable observer, both Republicans and Democrats, understands is obviously and clearly within Congress' power (see here, for example), what won't they do? Is there anything that the conservatives on the Court think is outside the realm of their power? What if they decided that Medicare is unconstitutional, because, you know, screw you, liberals! Or Social Security? Or the Clean Air Act? Or compulsory education? They've made quite clear that precedent, the actual Constitution, and reason itself are no bar to just doing whatever the hell they want if it serves the political goals of the conservative movement. So where does it end?
It's still possible the ACA could survive. But this court is even more partisan and even more activist than the one that decided Bush v. Gore, the most abominable and unprincipled decision of the last century. I fear that the answer is that there is just no end to what they'll do. Any law that conservatives don't like, they'll just file suit, and when it gets up to their five pals on the high court, they can be pretty sure they'll achieve there what they can't achieve in the political realm. If I were a conservative politician right now, I'd be taking a look at every piece of liberal legislation that ever bugged me, and finding somebody to file suit over it.
