Robert Bennett: Republic will survive Obamacare ruling

Published: Monday, April 9 2012 12:00 a.m. MDT

Rep. Steve King, R-Iowa speaks during a news conference on Capitol Hill in Washington, Tuesday, Jan. 18, 2011, after accepting delivery of signed petitions demanding the repeal of 'ObamaCare' . (AP Photo/Pablo Martinez Monsivais)

Pablo Martinez Monsivais, AP

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In anticipation of a 5-4 Supreme Court decision against Obamacare, commentators on the left have dredged up more than a decade's worth of complaints about similar close decisions from the court, saying that all of these rulings have been blatantly partisan.

Their complaints hark back to Bush v. Gore, in 2000, when five conservatives on the court — take your pick of the verbs being used — "stole," "hijacked," "wrongfully awarded" or "overrode popular will" to "illegitimately elect" George W. Bush. Those on the left are as sure of this "fact" as those on the right are sure that President Obama is a Muslim who was not born in Hawaii. Some actual history is in order.

When the recount started in Florida, Bush's lawyers believed that the officials conducting it were fraudulently giving votes to Gore and filed suit to stop that. The case was not tried because Gore's lawyers convinced the Florida Supreme Court to rule against Bush, 7-0. Bush's lawyers appealed that decision to the U.S. Supreme Court.

I was there when the case was argued and heard lawyers around me opine that Bush's case was strong. That proved to be the case; the U.S. Supreme Court overturned the Florida decision unanimously and sent the matter back to the state. A trial was then held, as Bush had originally requested, and the judge ruled in Bush's favor on all counts.

Gore's lawyers again appealed to the Florida Supreme Court; they again ruled in Gore's favor — this time, 4-3; and Bush's lawyers again appealed to the U.S. Supreme Court.

I was in the room when it was argued, too. Again, I heard lawyers around me predict a solid Bush victory, on the merits. It came by a vote of 7-2. So where was the terrible, partisan 5-4 vote?

It was not on the merits of the case — they had been decided in Bush's favor, 7-2 — but on what should be done with it. Four justices wanted to send the case back to Florida but five said no, they've proven that they can't get it right, so let's end it here. It was on procedure, not substance. The Supreme Court stands accused of having "stolen" the election for Bush when, in reality, they stopped the Florida Court from stealing it for Gore.

Another case cited as proof that the conservatives on the court have lost their way is Citizens United. What was that all about? A movie.

In 2004, Michael Moore made a movie, "Fahrenheit 9/11," which blasted George W. Bush. It played in many theaters, was widely praised by Bush's detractors and probably made money.

In 2008, some individuals decided to make a similar movie blasting Hillary Clinton. Not being as rich as Moore, they created a corporation to raise the money to do it, calling it "Citizens United." The movie did not play in many theaters, was hardly noticed and probably lost money. Still, it triggered legal action; how dare these people use a corporate structure to do what Moore, a rich individual, had done?

By a 5-4 decision, the court said that the folks behind Citizens United had the same free speech rights as Michael Moore. The ruling did not "overturn a century of precedent"; SuperPACs funded by rich individuals were already legal. It merely opened the door for more speech by more people.

My point is this: previous 5-4 rulings of the court have not endangered our liberties, even though they have angered many people. If we get another one in the case of Obamacare — either way — the Republic will survive.

Robert Bennett, former U.S. Senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.

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