A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.
While I would find it hard to agree that only just now are Republican efforts to put conservative activists on the bench paying off, Marshall’s point stands. More importantly, it’s obvious that a political faction can pack the courts with activist judges of a particular ideology over a prolonged period of time. This has been a conservative priority for decades and it’s paid off today. It’s a sad statement that the Democratic coalition has ever prioritized the judiciary as much as conservatives have made it a key part of their theory of change in America.