Flowers for Obamacare

Flowers for Obamacare
By David Catron on 9.7.11 @ 6:10AM

In Daniel Keyes' novel, Flowers for Algernon​, a medical experiment nearly triples the IQ of the protagonist, Charlie Gordon. Apparently, the President's experiment with our health care system has produced a similar effect on Supreme Court Justice Clarence Thomas. For two decades, progressives have claimed that he is intellectually unfit to sit on the Court. They have repeatedly told us that Thomas is, as one commentator recently phrased it, "a dunce and a worm." However, as myriad constitutional challenges to Obamacare work their way through the courts toward an inevitable showdown before the Supreme Court, the dunce's intellectual powers have somehow improved. In fact, we are now advised that Thomas is not merely intelligent, but that he is an evil genius with an outsized influence on the rest of the Court.

This miraculous metamorphosis was recently described in a New Yorker profile of Justice Thomas and his wife titled "Partners." According to the author of this remarkable piece of instant revisionism, Jeffrey Toobin​, "In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court … when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government … the majority has followed where Thomas has been leading for a decade or more." Toobin's inclusion of Thomas' potential ability to influence the views of other justices on the powers of the federal government is, of course, a reflection of progressive fears concerning the Court's eventual ruling on the constitutionality of Obamacare's individual mandate.

And these fears are entirely justified. Justice Thomas is a fervent advocate of "originalism," the interpretive principle which holds that the Court should base its rulings on the original meaning of the Constitution. Thus, if Thomas truly does wield the kind of intellectual influence now attributed to him by Toobin and other progressives, the individual mandate is indeed in grave danger. Obviously, originalism includes the view that the powers of the federal government are limited to those enumerated to it by the Constitution. That list does not include the authority to order Americans to buy products or services sold by private enterprises. And it is a virtual certainty that Thomas will reject any argument suggesting that the Interstate Commerce Clause confers such power on Congress.

Why, then, would a "reform" advocate like Toobin suddenly pronounce Thomas the intellectual leader of the Court when he knows the man will want to strike down the President's "signature domestic achievement"? Michael Barone provides a plausible answer: "It's possible to read Toobin's article as a partisan hit job, echoing the demands of 74 Democratic House members that Justice Thomas recuse himself from sitting on a case challenging the constitutionality of Obamacare because of his wife's involvement in the Tea Party movement." If Thomas is a dunce, how big a threat could he be? But if he's actually a Machiavellian manipulator of Court opinion plotting Obamacare's destruction with the aid of his Tea Partier wife, then he cannot be trusted to pass judgment on the law's constitutionality.

This would explain why Toobin, in the fourth sentence of a 9,100-word essay, mentions that ridiculous demand by a group of far-left Democrats for Thomas to recuse himself. Never mind that no code of ethics or statute requires him to do so. The relevant section of the U.S. code states that a justice should recuse himself "in cases where he served in government employment and in such capacity participated as counsel, advisor or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy." Note the absence of any verbiage relating to the political opinions of a spouse. The only passage containing that word refers to a husband or wife with a financial interest in an entity that is itself before the court, not a spouse with an ideological interest in the outcome of a case.

It is worth noting that the leader of those 74 Democrats demanding Thomas' recusal was that paragon of ethical conduct, Anthony Weiner. This may be why Toobin urged his fellow journalists not "to make a federal case" of the New York congressman's … er …foibles. Oddly enough, Toobin feels no such reticence when it comes to Justice Thomas' wife. Much of his New Yorker profile is devoted to her connection with the Tea Party movement, which he insinuates is somehow improper. He portentously points out, for example, that she has spoken out against Obamacare: "[H]er particular target was the health-care-reform law, which was, in her view, clearly unconstitutional." The clear implication is, of course, that Justice Thomas has a conflict of interest pursuant to his wife's opposition to "reform."

Oddly, Toobin has never demonstrated any similar concern about a very real conflict of interest involving the newest Supreme Court appointee. As it happens, the language quoted above from the United States code (Section 455 of Title 28) so closely matches the pre-nomination activities of Justice Elena Kagan that it may as well have been included in her job description as U.S. Solicitor General. In fact, Neal Katyal​, the acting Solicitor General who unsuccessfully defended the individual mandate in the 11th Circuit Court of Appeals​, was assigned to the litigation team by Kagan herself. Toobin's lack of interest in this, combined with his reluctance to hold one of Justice Thomas' most vehement congressional critics accountable for behavior that was both unethical and disgusting, suggests that his main concern is saving Obamacare.

The irony of all this is that Toobin is probably right about the intellectual heft of Justice Thomas. Moreover, that the left has consistently underestimated him has been good for the country. There isn't the slightest possibility that he will recuse himself when Obamacare finally makes its way to the Supreme Court and he will assure that the individual mandate is ruled unconstitutional, and perhaps convince four additional justices to strike down the rest of the pernicious health care law as well. Once the Supreme Court has issued its ruling, however, we can expect Thomas's intellectual powers to recede just as Charlie Gordon's did in Flowers for Algernon. It won't be long before progressives are once again telling us that he is an idiot. But, in the interim, we can place a few flowers on Obamacare's grave.
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To read another article by David Catron, click here.