When the Supreme Court was expanding the rights of minorities and women back in 1950-1975, conservatives were strongly emphasizing the need for judicial restraint and condemning the Supreme Court as an activist court.  Now that the shoe is on the other foot, we are beginning to see how much conservatives really believe in judicial restraint and how activist they are willing to be to get what they want.

There are several doctrines that courts have traditionally used that “restrain” courts from reaching to strike down laws or at least from striking down more laws than they should.  Currently, there is the latest case challenging the Affordable Care Act.  This case claims that, when the Republicans passed there tax cut last year, Congress by setting the penalty for not complying with the individual mandate at zero made the entire Affordable Care Act unconstitutional.

To understand the theory, you have to go back to the decision upholding the individual mandate in 2012.  Under that decision, the individual mandate was only constitutional because it was a tax.  Under the theory being pushed by Republicans, because the tax is now set at zero, the individual mandate is unconstitutional. And the trial court — accepting this theory — found,  that because the individual mandate is unconstitutional, the entire act is unconstitutional.  This case is currently before the Fifth Circuit and the three-judge panel seemed likely to affirm — at least the finding that the individual mandate is unconstitutional. Continue Reading...