The shocked look on CNN legal analyst Jeffrey Toobin's face as he emerged from the Supreme Court's oral arguments over Obamacare was priceless:
"This was a train wreck for the Obama administration," Toobin said Tuesday. "This law looks like it's going to be struck down. I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law, were wrong."
By Wednesday, Toobin had upped the ante: "This still looks like a train wreck for the Obama administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed."
Toobin's dawning recognition that the Supreme Court may actually strike down a law passed by Congress and that liberals like prompted pushback from leading Democrats in Congress.
Senate Majority Leader Harry Reid said: "I'll bet I've been in court a lot more than Jeffrey Toobin and I had arguments, federal, circuit, Supreme Court and hundreds of times before trial courts ... in my personal opinion, although I have great respect for Toobin, I disagree with him. I think that the argument went just fine and the court has not made up their mind what they're going to do."
Democrats are having a hard time believing it. They aren't used to what conservatives like me have faced repeatedly. Go through the hard slog of getting a law passed (like, say, Proposition 8 in California) only to have progressives go to court and get it struck down on the grounds it offends some radical new norm no author of our Constitution would recognize.
Since at least 1973, when Roe v. Wade struck down anti-abortion laws in all 50 states, progressive elites have looked on the Supreme Court as their wholly owned subsidiary -- a trump card only they get to play.
The Supreme Court's job, in their view, is to strike down popular laws supporting traditional moral norms -- especially sexual norms -- that progressives would have trouble winning at the ballot box. The discovery and invention of new rights, from abortion to gay marriage, was their turf, their "Get Out of Democracy Free Card."
Or so they thought.
That shocked look on Jeffrey Toobin's face was a stand-in for thousands of elite progressives' dawning realization that they might be on the receiving end of "judicial activism" -- and see how little they like it.
The American people are not constitutional lawyers, but they know what they don't like: a government mandate on ordinary people to buy something they don't want.
In the latest CBS News poll 38 percent of Americans want to throw out the whole law, 29 percent want to overturn just the mandate -- leaving just one in four Americans (26 percent) who want the Supreme Court to uphold the entire law.
Two years after the passage of Obamacare, just 19 percent of Americans think the law will help them, while 31 percent think it will hurt them. The new "insureds," supposedly the beneficiaries of Obamacare, are mostly young, healthy people who will now be roped into paying for something called "insurance" that actually pays for other people's health care. It's not surprising that Obamacare turned out to be much less popular than President Obama promised shell-shocked Democrats.
Of course, if the Supreme Court strikes down the individual mandate, that will not be judicial activism in the same way that striking down abortion laws in all 50 states was, or imposing gay marriage on all 50 states would be.
When the government steps in to assume a radically new power -- in this case to order individuals to buy insurance and to punish them if they do not with a financial penalty -- it's perfectly proper and fitting for the Supreme Court to scrutinize the new law to see if Congress really has that power.
Now, liberal Democrats are looking straight into the abyss of a world where courts can step in and take away what they fought hard for at the ballot box.
Perhaps they will suddenly develop a little sympathy for the conservative half of the country whose laws and norms they go to court to throw out?
Don't count on it.
(Maggie Gallagher is the founder of the National Organization for Marriage and has been a syndicated columnist for 15 years.)
- Jeffrey Toobin
- Supreme Court