Official Washington's polite society -- led by the neocon Washington Post -- is chastising President Barack Obama for his faux pas in defending the constitutionality of the Affordable Care Act and in urging the Republican-controlled Supreme Court to show due deference to a law approved by the elected branches of government.
Since Monday when Obama uttered his statement, the Post's editors have been suffering from the vapors -- publishing two breathless editorials and various columns -- and sputtering about Obama's "jarring" comment.
While rapidly fanning themselves and trying to control their heart flutters, the Post's editors lamented again on Wednesday that Obama's "comments strayed perilously close to a preemptive strike on the court's legitimacy if it were to declare the individual mandate unconstitutional."
The Post's editors were apoplectic, too, "that some liberal supporters of the law are preemptively trying to delegitimize a potential defeat, as if no honest justice could possibly disagree with the mandate's constitutionality. The president's initial remarks added unnecessary fuel to this contention."
The Post then lectured Obama about maintaining his proper posture while in the Establishment salons of Washington. "Given the power of the bully pulpit, presidents are wise to be, well, more judicious in commenting about the high court," the Post said.
What you're seeing in the Post's overwrought reaction is its protection of a favored fiction of Official Washington, that the deeply partisan GOP Five, who now run the High Court on behalf of the Republican Party, are not really partisans at all, just responsible jurists fairly applying constitutional principles.
You are not supposed to notice the ugly truth that the GOP Five (like an earlier incarnation of the group in the Bush v. Gore case in December 2000) has set itself up as the rear guard of the Republican army.
Thus, if somehow democracy breaks through the Republican lines -- whether a state-court-ordered presidential recount in Florida or a new federal program pushed by a Democratic president -- the GOP Five are there to mount a last-ditch counterattack, charging down the hill while shouting incoherent constitutional "principles."
At other times -- when the battle is less pitched -- the GOP Five provide logistical support for the front-line political warriors, either opening supply lines for the delivery of massive campaign money from billionaires (via Citizens United) or empowering police to strip search (and thus terrorize) anti-corporate protesters.
That's the troubling reality: the Supreme Court's majority has become a reserve battalion of the GOP army. But the Post's editors and other protectors of the hollowed-out pillars of the Republic can't acknowledge this fact because it would threaten to crumble the thin layers of marble that remain of the pleasing façades of the capital.
Flipping Over Principle
So, you're supposed to ignore that the five Republican justices constantly flip their constitutional principles depending on their partisan needs. For instance, regarding the health-reform law, these "strict constructionists" were suddenly demanding that some "limiting principle" be inserted into the unlimited power that the Constitution gave Congress over interstate commerce.
The fact that the Framers included no "limiting principle" should have been especially determinative for justices like Antonin Scalia who embrace the concept of "originalism" as well as a literal reading of the Constitution. If the Framers chose not to insert restrictions in the Commerce Clause, well, that should do it.
And, that was the conclusion of serious conservative jurists, such as senior Appeals Court Judge Laurence Silberman, an appointee of Ronald Reagan, and Reagan's Solicitor General Charles Fried. Both measured the new law against the Constitution and concluded, without hesitation, that it passed constitutional muster.
When asked why the GOP Five nevertheless appeared headed toward striking down the Affordable Care Act as unconstitutional, Fried answered, "politics, politics, politics." [See Consortiumnews.com's "When Is a Hack a Hack?"]