likes the Indian Healthcare Improvement Act and other ingredients of the Patient Protection and Affordable Care Act, aka "Obamacare." Why, she asked toward the end of three days of hearings, shouldn't the court keep the good stuff in Obamacare and just dump the unconstitutional bits?
The court, she explained, is presented with "a choice between a wrecking operation ... or a salvage job. And the more conservative approach would be salvage rather than throwing out everything."
"Conservative" is a funny word. It can mean lots of different things. It reminds me of that line from
Conservative can mean cautious in temperament -- a man who wears belts and suspenders. Similarly, it sometimes suggests someone who's averse to change. It can also refer to the political ideology or philosophy founded by
Things can get complicated because these different meanings can overlap. Many strident liberals can have conservative temperaments, and many philosophical conservatives can have private lives that make a brothel during Fleet Week seem like a retirement-home chess club. Conservatives in America love the free market, which is the greatest source of change in human history. Liberals, alleged lovers of change and "progress," often champion an agenda dedicated to preserving the past. Just consider how much of the
You can also be conservative with respect to a given institution while being un-conservative in every other respect. The most ardent Communists in the Chinese or Cuban politburos are often described as "conservatives." The same holds true for every left-wing institution in America: Someone has to be the "conservative" at
Anyway, sometimes people like to play games with the indeterminacy of the word "conservative" in order to sell a liberal agenda (and in fairness, conservatives often do the same thing with "progressive").
Which brings us back to Justice Ginsburg. 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
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 Justice 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.
Some liberals note that one option Congress could pursue would be to pass a far more left-wing piece of legislation that mandates a single-payer system, i.e., socialized medicine. That would -- or at least could -- be constitutional. And that's true: Congress could do that, and I'm sure Justice Ginsburg would be pleased if it did.
And if that happened, the right and conservative thing for the court to do would be to let it happen.