“Misremembered” is the name of a race horse, but it also describes the state of the Democrats in response to the threat the Supreme Court now poses to their health care law — secured by their side through blood, sweat and bother, and now put so cruelly at risk.
In their eyes, they think that they won it all fairly, and that it now faces extinction by partisan hit men. But this is to misremember what really took place.
The health care law achieved its final passage narrowly, after being stalled by Scott Brown’s election to the Senate. It was pushed through, full of basic errors, in a sloppy and corrupt process. It was deeply resented and even morally questionable in the sense that it violated both the fiercely and fervently uttered will of the people, and the intent of the founders.
Brown was elected to “Ted Kennedy’s seat” in blue Massachusetts with the voters’ knowledge and understanding that he would stop Obamacare’s progress. Bob McDonnell and Chris Christie were elected in two states that had gone for Obama — in each case the vote was regarded as a protest against Obama’s agenda. Public opinion was strongly opposed to the health care bill from the time it was broached to the present, and only has grown in intensity.
It has been described as the main force behind the 2010 tsunami that lost the Democrats their free hand in the Senate, and cost them control of the House. This is no “normal” bill, like the civil rights acts or Social Security, which passed in the normal way with large, bipartisan margins and widespread support from the public. A court ruling annulling those laws would have enraged and disrupted the country. In contrast, the annulment of this one would delight most Americans, confirming a verdict the electorate arrived at much earlier, and which now seems unlikely to change.
Misrecalled too are the complaints about the court’s “partisan leanings.” Especially after Bush v. Gore, but after other cases as well, commentators began to demand that the court avoid 5-4 decisions.
But in Bush, the Supreme Court didn’t want the case and originally sent it back to the state. And ultimately, whatever its motives — partisanship or otherwise — the court was forced to intervene only to check the partisan Democrats on the Supreme Court of Florida, who had been rewriting the rules after the election was over, and always in favor of Gore. Which raises the point: Why is it only the conservatives are assumed to have partisan motives, whereas the liberals’ motives are always pure?
Both sides can be guided by “partisan motives,” which can be described also as “principled differences,” which can be held sincerely, and grounded in study and thought. Over time, conservatives and liberals have evolved different theories of governing principles, and how to serve the public good. Presidents also have these ideas, and when picking justices, pick those who share them.
Conservatives have a very slight edge on the bench, because Republicans have held the White House more often than Democrats in the last half-century. Democrats who blame conservatives who vote in a bloc or vote predictably don’t blame liberals when they do the same thing. This proves they don’t object to 5-4 decisions — just to 5-4 decisions that don’t go their way.
Examiner Columnist Noemie Emery is contributing editor to The Weekly Standard and author of “Great Expectations: The Troubled Lives of Political Families.”
