I just came upon an interesting article from last June by Jonathan Zasloff in The Reality-Based Community. It is about Justice Samuel Alito’s dissent in Miller v. Alabama. That was the case where the court found that it was unconstitutional to provide mandatory life in prison without parole for juvenile offenders. Alito wrote, “Nothing in the Constitution supports this arrogation of legislative authority.” In other words, Alito is saying the courts don’t have the constitutional right to usurp the authority of the legislature. Zasloff notes that this is interesting, because Alito didn’t think this when it came to Obamacare.
Alito was so angry about the court’s ruling that he read his dissent from the bench. This is typical of what I find so bothersome about conservatives generally, but especially on the bench. Samuel Alito here is making the case that the law is very clear. It goes right along with John Roberts’ statement that he just “calls balls and strikes.” But somehow, the clarity of the law vanishes the moment they have an opportunity to score a partisan blow. This predates Alito, of course. Just go back to Bush v. Gore, where the conservatives who hated the equal protection clause and interpreted it very narrowly suddenly found that it was very big when it came to the protection of George W. Bush. But even there, they had to add a statement that even though they had ruled for the equal protection of Bush, the ruling could not be used as precedent when it came to the equal rights for anyone else in the future.
When it came to mandatory minimums for juvenile offenders, Alito couldn’t find anything in the Constitution that would allow the Supreme Court to interfere. But when it came to Obamacare, Alito didn’t even think about such limits to its power. Here’s Zasloff:
The point is that Alito, like most conservative judges, takes the law very seriously. Until he doesn’t. As Zasloff says, “Cutting 30 million people off of health insurance, however, is just a day at the office.”