Let me push this envelope a bit further than most pundits are willing to go. I don't believe that the Court's decision on ObamaCare will reflect any belated reaction to the President's unprecedented snub of the Court at his 2010 State of the Union presentation to Congress. I also don't think that the justices will be intimidated by his inappropriate and erroneous demagoging of the Courts rights and obligations - or that they will over-react in the opposite direction. (Do read Leon Wolf's posting on Red State.) But I do believe that the members are not blank sheets upon which Truth is projected.
Background item I. The March 27-29 hearing on ObamaCare in which Justices Roberts, Scalia, and Kennedy unsuccessfully sought to find, under the administration's theory, if there were any limits on the power of the federal government relative to the individual if the individual mandate were allowed to stand. Even many liberals were disappointed by Solicitor General Verrilli's inability to provide an answer. A theoretical question? Perhaps not.
Background item II. The January pronouncement by HHS Secretary Sebelius that the mandatory insurance to be provided by all employers must include "free" contraceptives, sterilization, and morning after (abortion) pills. If we are to have mandatory insurance, we need clear definitions of what must be covered. If the administration's decision to re-neg on commitments to Congressman Stupak and others to exclude abortion from the legislation results in a mandate which offends Catholic employers - or any employer for that matter - they need to get over it.
And who are these members of the Supreme Court in this center-right country where the most visible religious group are the Protestant evangelicals? Three Jews (Ginsberg; Breyer; Kagan) and six Catholics (Roberts; Scalia; Kennedy; Thomas; Alito; and Sotomayor.) Coincidence? Not really. Presidents Reagan (Scalia; Kennedy), HW Bush (Thomas), and GW Bush (Roberts; Alito) have chosen to not re-fight Roe v Wade in their Senate confirmation hearings. Observant Catholics were equally conservative and more acceptable than observant Protestants, and - in the eyes of Republican presidents - less controversial.
So President Obama finds himself arguing to expand the power of the state, overriding both the conservative view of the constitution's importance and the Catholic Church's moral objections. And he gets a Supreme Court full of Catholics. This is not to say that the majority of the Court agrees with the Catholic Church's teachings on abortion or any other matter. It is to say that they understand more personally and profoundly than most the significance of allowing the federal government to force individuals as well as institutions to compromise their moral beliefs.
This didn't come about by accident, and the political implications may favor Obama. He may well lose the guts of his major legislative accomplishment, but he seems to have outmaneuvered the Republicans (with the help of Rush Limbaugh) by letting the issue of Sibelius' regulations be viewed as an assault on women rather than the unnecessary imposition of offensive requirements on those with religious or ethical objections. He is now setting the stage for an election theme that Republican control of the presidency and the Senate will result in locking in a disasterous conservative Supreme Court. It is ironic that Rick Santorum is not the candidate who would be using the prospect of overturning Roe v Wade in the 2012 election - Obama will be.
Here's a quick take of a recent House vote on a 2013 budget proposal - not Paul Ryan's which passed 228-191, but President Obama's which failed 409 to 0. I would offer a comparison with the Senate vote, but once again there is none.
bill bowen - 4/6/12