Jonah Goldberg‘s latest National Review Online column examines the comment from U.S. Supreme Court Justice Ruth Bader Ginsburg that a “conservative” approach to the ObamaCare case would entail salvaging the constitutional pieces of the legislation, rather than scrapping the entire bill.
She would have people believe that if the Court rules the individual mandate unconstitutional, the conservative thing to do would be to preserve the rest of Obamacare. She suggests that “wrecking” the whole thing would be an act of judicial activism, while “salvaging” it would be an act of conservation.
In other words, she’s playing games with the word. The Supreme Court is supposed to be a conservative institution in that it serves as a backstop for the excesses of the other branches. Political conservatives, by extension, argue that the court should defer to Congress, the most democratic branch, when constitutional issues are not at stake. Hence, liberals contend, a “conservative” court should take a scalpel to Obamacare, not an axe.
It sounds reasonable, but it isn’t. As Justices Scalia, Kennedy, and Roberts noted, if the court simply removes the requirement that everyone buy health insurance, they are left with the task of essentially rewriting the act. That prospect caused Justice Scalia to exclaim, “What happened to the Eighth Amendment [barring cruel and unusual punishment]? You really want us to go through these 2,700 pages? . . . Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?”
The conservative thing to do — and I don’t mean politically conservative — is to send the whole thing back to Congress and have it done right. Leaving aside the fact that Obamacare largely falls apart if you remove the mandate, it’s not the Supreme Court’s job to design our health-care system from the scraps Congress dumps in its lap. What Ginsburg proposes is akin to a student handing in a sloppy, error-filled term paper, and the professor rewriting it so as to give the student an A.