Right-wing media demonstrate “judicial activism” by urging landmark healthcare bill be overturned by courts

Despite their purported opposition to “liberal judicial activism” and supposed support for judicial restraint, right-wing media have responded to the passage of health care reform legislation by urging it be overturned by the courts. Media Matters has previously noted that despite the conservative myth that judicial activism is solely a “liberal” practice, at least two studies have found that the most “conservative” Supreme Court justices have been the biggest judicial activists.

Right wing media urge historic health care bill be overturned by judiciary

Wash. Examiner's Stirewalt: “Either learn to love Obamacare, or sue to stop it.” In a March 21 column headlined “Either learn to love Obamacare, or sue to stop it,” Washington Examiner political editor Chris Stirewalt wrote:

As the Senate is grinding out this last leg of the health care marathon, the legal battles in the states will already have begun.

The most constitutionally dubious part of the legislation is the mandate that all individuals must purchase private insurance or pay a fine. While the plan provides free insurance for the poor, it depends on the working poor and the middle class being forced to buy private insurance, with fines for families earning as little as $19,000.

The Constitution gives the government the power to take your money, but not the power to force you to give it to Blue Cross Blue Shield.

Many states, already including Virginia, Idaho, South Carolina, Texas and Florida, are ready to file suit as soon as one of their citizens is compelled to purchase insurance. The Obama Justice Department may end up facing 38 state attorneys general in the battle over whether or not Americans can be forced into the system.

And given the originalist bent of the Roberts Supreme Court, justices might knock down the individual mandate, and Obamacare along with it. That battle will be taking place just as congressional Democrats are facing voters.

Hot Air's Morrissey: “The courts seem like a fruitful place to deconstruct ObamaCare.” In a March 22 Hot Air post, Ed Morrissey writes that “States have already begun preparations for constitutional challenges, mainly based on the unprecedented creation of federal mandates on individual citizens,” adding, “The courts seem like a fruitful place to deconstruct ObamaCare.”

RedState's Erickson: Bill “can be challenged in court.” In a March 21 post on what the Republican Party can do in the wake of the passage of health care reform, Erickson writes: “Come what may tonight, the fight is not over. Relevant portions of the law would not go into effect until 2014 and those parts that come into effect sooner can be challenged in court.”

Malkin highlights “lawsuit backlash against Demcare.” In a March 22 blog post headlined “Attorneys general launch lawsuit backlash against Demcare,” Michelle Malkin reported that “The backlash continued over the last several weeks with state attorneys general signaling plans to sue the feds” to have the health care reform bill declared unconstitutional.

Calls for judicial repeal fly in the face of supposed right-wing opposition to judicial activism

Right-wing media frequently warn against the dangers of “liberal judicial activism” and tout their support of judicial restraint. Conservative media -- including Morrissey and Malkin -- frequently attack liberal judges, but not conservative judges, for engaging in “judicial activism. Conservatives often characterize judicial activism as legislating from the bench. For example, Fox News contributor Fred Barnes said of the process of replacing Supreme Court Justice David Souter, “Republicans do have a role here, and it's to talk about judicial activism and the dangers of it” ; Barnes also stated that “liberal judicial activism” is “entirely results oriented.” And radio host Laura Ingraham asserted that Judge Sonia Sotomayor, nominated by Obama to replace Souter, has “been described as judicially liberal, which means you don't favor the principle of judicial restraint.” Ingraham later added that Sotomayor is “a traditional liberal and does not believe in, I think, a strict adherence to separation of powers.”

In fact, studies show that conservatives -- not liberals -- most likely engage in “judicial activism.” A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled “conservative” were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Those most frequently labeled “liberal” were the least likely to strike down statutes passed by Congress.

A 2007 study by Cass R. Sunstein (subsequently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism -- the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's “conservative” justices were the most likely to engage in “judicial activism” while the “liberal” justices were most likely to exercise “judicial restraint.”

Numerous experts conclude that health care reform is constitutional

Legal scholars have rejected conservatives' arguments about bill's constitutionality. In fact, legal scholars -- including George Washington University law professor Orin Kerr, who recently served as a special counsel to Sen. John Cornyn (R-TX) during Sotomayor's confirmation proceedings -- have pointed out the flaws in conservatives' arguments, including that regulation of the health care sector falls under Congress' broad power to regulate interstate commerce and that Congress has repeatedly passed laws regulating health care and health insurance. In a December 2009 paper for the American Constitution Society, National Senior Citizen Law Center public policy counsel Simon Lazarus added that arguments that the individual mandate is unconstitutional “have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law.”