When asked about Bush v. Gore or Gonzales v. Raich–but never Roe v. Wade and, I’m sure, NFIB v. Sebelleius–Justice Scalia is fond of saying “get over it.” Get over it. There were 5 votes. Your side lost. So get over it.
But is this so? Eric Claeys writes that with respect to NFIB v. Sebelius, we should not get over it. Of course, the GOP will continue to attack ACA on policy grounds. But Eric insists that the GOP should continue to attack it on constitutional grounds–even though 5 Justices (on flimsy reasoning) said it was constitutional.
Eric cites things like the Virginia and Kentucky resolutions as examples that the Court’s decisions about constitutionality are not final, and to support the proposition that ultimately, the sovereignty of constitutionality remains with the people. This argument screams of nullification, even if I agree with the constitutional position.
Now, Michael Grieve is correct to note that the left often does not get over it with 5 votes. Michael made a similar point that I made in tonight’s JoshLive about Citizens United and the liberal reaction. After Citizens United, the President–in front of 5 Justices–assailed the court for being wrong about the Constitution. To this day, many liberals continue to assert that the 4 dissenting justices were correct. Hell, Justice Stevens says it every chance he gets! This type of argument does not seem to be that much different from the position espoused by Claeys. Liberals seek to pass laws (Disclose Act) and Amendments (that will go nowhere) to “overturn” Citizens United–which they reject as constitutionally wrong.
So, maybe on this front, Claeys is on to something. For what’s worth, Eric made a very similar point last year in National Affairs.
Update: Mike Rappaport adds:
I don’t think it would be legitimate or effective to argue that the Supreme Court decision should be ignored or disobeyed. But it is perfectly legitimate in my view for the political branches to say that they disagree with the Court and to act on that view in a way that does not conflict with the Supreme Court’s judgment. Repealing the Act on the ground that they believe it is unconstitutional would not conflict with the Court’s decision.