“Justice Breyer on Obamacare: ‘I Haven’t Read Every Word of That, I Promise’”
Good. Then throw the whole damn thing out, why don’t you?
Not to get all linguistic on all of you, but one of the arguments made by Justice Kennedy, with respect to the question of severability (and which spoke against Justice Bader Ginsburg’s pleas that the SCOTUS has, as part of its function, to “salvage” bad legislation on behalf of a legislative body since voted out by the American people), should be familiar to long-time readers of pw. Kennedy asked if, by retaining the law should the mandate be removed, would this not be an act of extreme judicial activism, the reason being that, once the mandate was removed, the law would be something new entirely — essentially, a completely new and different text from the one intended by those who passed it. [Note: an earlier version of ObamaCare passed the House with a severability clause. The final bill, after its Senate journey, did not. We can therefore fairly assume that the decision to remove it was a conscious, legislative one — likely based on some political calculation that SCOTUS would be less likely to strike the whole thing down if they weren’t given a choice to strike down just the mandate. At least, that’s a compelling explanation, based on the legislative history].
And that’s because on some theoretical level, Justice Kennedy knows that changing the text so dramatically creates a new text — and essentially enshrines into law the intent of the SCOTUS, who become de facto super legislators under such a procedure, scuttling or ignoring the intent of those who wrote the law and of the legislators responsible for passing it while simultaneously pretending that they are ruling on that same law.
They wouldn’t be. They’d be ruling on what is essentially a sloppy “re-write” of the law and ascribing the intent of this new, significantly changed text — their creation — to the original legislators.
That appears to strike Justice Kennedy as a profound example of judicial activism. And he’d be correct in that position.