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Right Turn
Posted at 10:30 AM ET, 06/26/2012

Lead up to Thursday's Supreme Court decision

We’ll have to wait until Thursday to hear the Supreme Court’s ruling on Obamacare. But the left is wasting no time in embarrassing itself. James Fallow got a jump on the hysteria on Sunday, decrying the nerve of the Supreme Court majority in contemplating the invalidation of Democrats’ dream health-care legislation. (In his world there is no difference between Republicans in Congress and strict constructionist justices on the bench.) Such is the debased state of liberal thought that such a rant is taken seriously by lefty bloggers. The left’s lack of seriousness about constitutional scholarship — and the shock with which its brightest lights greet the prospect that all those liberal law professors may have missed the Commerce Clause boat — is a source of amusement, I confess, on the right.

But wait, if it’s all partisanship, then how did the court rule in the Arizona case mostly in favor of the administration on . . . oh, never mind.

The real story here is not, strictly speaking, a political one, but rather the revolution in legal scholarship. We arrived at this point decades after the birth of a jurisprudential movement in favor of originalist interpretation — that is, a focus on the text, meaning and structure of the Constitution. The movement toward fidelity to constitutional text was a conscious and deliberate effort in reaction to the Warren court. It began in the Reagan Justice Department, was nurtured in conservative think tanks and then debated in groups like the Federalist Society.

Conservatives perceived the danger of judges unmoored to any fixed meaning or text, roaming through the legal landscape. They understood that if the elected branches were to retain the primary role in policymaking, Congress either had to strip courts of jurisdiction (a bit of a conservative fad in the 1980s) or convince judges to forswear a style of judging in which anything (foreign law, the judge’s personal beliefs, “empathy”) goes. The latter option eventually carried the day to such an extent that liberal Supreme Court nominees like Sonia Sotomayor now parrot the language of strict constructionism.

The only reason we are arguing over enumerated powers and whether upholding Obamacare would — as Justice Anthony Kennedy put it in oral argument — change the entire nature of the relationship between the federal government and the individual is because conservative scholarship made these concerns (rather than, say, sociology) the central concern in constitutional interpretation.

The elite in law schools for decades found this to be boorish, cramped thinking. The nonlegal elite remained convinced that whatever they thought was a good idea was constitutional.

We therefore arrive at the doorstep of a Supreme Court ruling, certainly the most important in my lifetime, for which the right has been preparing for decades. The reason the left now seems so buffoonish is because its proponents never took their originalist opponents seriously and never steeped themselves in real constitutional scholarship. That gap is now evident in the lead-up to Thursday. The left rants about a “coup” by the court and power politics. Meanwhile, the right revisits the meaning and structure of our Constitution, hoping that its arguments have been compelling enough and that at least five justices have put aside base and irrelevant concerns about elections, horsetrading and popular perceptions of the court. And no one expects anything from the liberal justices other than reflexive support for a political goal they like. If it’s a good thing thing, it must be constitutional, right?

By  |  10:30 AM ET, 06/26/2012

 
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