U.S. Supreme Court Justice Antonin Scalia
So what has happened to many of those conservative "strict constructionists" who insist that only a literal reading of the Constitution is acceptable and that "activist" justices can't simply "create rights" for Americans that the Framers didn't write down?
Apparently, because these "conservatives" hate "Obamacare" -- almost as much as they detest President Barack Obama -- they're celebrating the hypocritical spectacle of five Republican justices on the Supreme Court demanding that new limitations be placed on Congress' constitutionally unlimited power to regulate interstate commerce.
These self-proclaimed "strict constructionists" can't find limitations in the actual Constitution, since none are there, so the GOP Five apparently intend to insert some new words into the founding document to post-facto (or perhaps ipso facto) disqualify the Affordable Care Act as "unconstitutional."
Maybe, the GOP Five should just drive down to the National Archives, pry open the case holding the Constitution and pencil in some new words. After the relevant section about Congress having the power to regulate interstate commerce, the GOP Five can scribble in "except for things like purchases of broccoli, gym memberships, cell phones and health insurance."
More likely, the GOP Five -- Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito -- will come up with some more elegant wording that suggests a higher principle is involved.
After all, in December 2000, a subset of this group (Kennedy, Scalia and Thomas along with the late Chief Justice William Rehnquist and now-retired Justice Sandra Day O'Connor) dressed up its Bush v. Gore ruling with a lot of legal references.
Essentially, however, those five Republican partisans detected a previously unknown provision in the 14th Amendment requiring that when a Republican presidential candidate is in danger of losing an election, then all the voting procedures in the key deciding state must have been identical, precinct to precinct. If they weren't -- and they never are -- the GOP candidate wins.
Post Editors to the Defense
On Friday, the Washington Post neoconservative editorial writers rallied to the defense of today's GOP Five as men of undying personal integrity who simply have an honest difference over how to read the Constitution.
While praising the three days of oral arguments as "the Supreme Court's civics lesson," the Post's editors expressed dismay over the "cynicism" of some liberals who "were preemptively trying to delegitimize a potential defeat at the court" by making the Republican justices look "partisan, activist and, essentially, intellectually corrupt."
How unfair, wailed the Post's editors. While the Post suggested that the five Republicans should show some "modesty and deference to elected legislators" who fashioned the difficult health-insurance compromise, the Post seemed most upset that the integrity of the GOP Five was being questioned.
"We wouldn't assume anyone who disagrees [with the constitutionality of the law] is a hack," the Post declared.
And one might say the Post's editors, who treated Saddam Hussein's possession of WMD stockpiles as a "flat fact" in 2003 and who disparaged Americans who dared question the veracity of that casus belli, should know something about being hacks.
In Friday's editorial, the Post also adopted the posture that most befits a journalistic hack, the cowardly and simpleminded framing of debates as both-sides-are-equally-at-fault. The Post suggested that the four Democratic justices were somehow behaving in a partisan manner by following the actual wording of the Constitution.
"We share the disappointment that the justices on both sides of their ideological divide are, for the most part, so predictable," the Post lamented. "That's not, in an ideal world, how judging is supposed to work."
No, in an ideal world -- or even a world where we expect a modicum of philosophical consistency -- we might hope that Supreme Court justices would stick to interpreting the Constitution rather than demanding extemporaneous rewrites, or "limiting principles" that the Framers chose not to include.
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