Has there been a single pundit from the liberal left who has proactively denounced the Supreme Court for undue “activism” if it invalidates the individual mandate who has also denounced the Supreme Court for activism for invalidating most of Arizona’s immigration-enforcement statute? I understand there are all sorts of distinctions one can draw between the two cases (and I heard Jeff Rosen cleverly drawing them on the Diane Rehm Show yesterday), but a presence or lack of “activism” isn’t one of them.
The closest I’ve heard to a plausible distinction is that the Arizona cases weren’t “activist” because they followed precedent, but invalidating the individual mandate would be because that would involve rejecting precedent. But I’m quite confident that if the Court does invalidate the individual mandate, the majority will express agreement with the consensus of lower courts that the mandate is itself unprecedented, which naturally means that there is no prior case directly on point.
Either one believes in a “restrained” judiciary, or one does not. It’s really not much of a surprise that the vast majority of those on the liberal-left who support the constitutionality of the mandate don’t believe in a restrained judiciary. They rather simply don’t think that federalism concerns are constitutionally significant (or, if they are, that the importance of health care reform far outweighs their significance). On other hand, they think that protecting the rights of illegal immigrants from overzealous states (or ensuring the right to abortion, or the right of gays to marry, or the protection of “War on Terror” prisoners) is exactly the sorts of things that the Court should be “activist” about.