Justice Breyer’s “Outrageous” Statement

Todd Gaziano /

Supreme Court Justice Stephen Breyer

Justice Breyer’s suggestion yesterday at a congressional budget hearing that the Supreme Court will likely wind up passing judgment on various aspects of the Obamacare law should surprise no one. The Court’s shrinking docket has been a topic of Congressional inquiry for years, and it is not unusual for lawmakers to ponder whether Congress should require the High Court to take more cases or at least certain important ones (as it sometimes does).

It is also true that the recent health care “reform” violates many provisions of the Constitution. Any legal scholar worth his salt should predict that the Supreme Court will be called on to at least interpret the law, if not strike down major portions of it. It would have been shocking if Breyer had said challenges to Obamacare were not likely to be worthy of the High Court’s review.

In any event, one has to wonder how the liberal press might have played Breyer’s statement, had it been made by the other witness at today’s hearing, Justice Clarence Thomas. For example, Slate might have reported it something like this:

As rage-filled birthers, racists and other assorted Tea Party activists gathered in Washington, ultra-conservative Supreme Court Justice Clarence Thomas served up the red meat they craved by predicting that the Supreme Court would have the final word on whether President Obama’s historic health reforms will be allowed to bring healing and peace of mind to millions.

The thinly veiled threat to undo Obama’s transformative achievement–one pursued by leaders of both parties since Teddy Roosevelt occupied the Oval Office–doubtless roused the spirits of Tea Partiers and their ilk, who insist on labeling the President’s middle-of-the-road solution as “socialist.”

A spokesman for the Alliance of Liberal Activists called Thomas’s statement “a shocking departure from the traditions of the Court.” It was, he noted, “just one more proof of the right-wing politicization of the Court, which instinctively favors corporations over amputees like Lilly Ledbetter.” The ALA called upon Thomas to recuse himself from any decisions on the landmark health reform package.

Professor I. Drone, a leading authority on constitutional law at the East Coast College of Law, concurred that Thomas’s outburst creates “at the very least, an appearance of impropriety.”

“It is unseemly and wholly unprecedented for a sitting justice to predict that the Court will rule favorably on future petitions for certiorari long before the lower courts have even made preliminary rulings,” Drone noted.

The White House had no immediate public comment on Thomas’s behavior but Robert Gibbs promised to report back on the White House’s view.  However, Senate Judiciary Committee staffers said Chairman Patrick Leahy, (D-VT), is “seriously considering” separate hearings to investigate the right-wing leanings of the Court.