Why Conservatives Shouldn’t Gloat Yet

The right is giddy after last week’s Supreme Court arguments on Obamacare. Their glee may come back to haunt them.

By Eliot Spitzer  |  Posted Monday, April 2, 2012, at 5:24 PM ET

Conservative intellectuals are feeling giddy. Last week they feasted on the veritable mauling of Solicitor General Donald Verrilli by the Supreme Court’s five conservative justices. (In truth, Verrilli was only questioned by four of the conservatives—Justice Clarence Thomas, true to form, didn’t speak. But we know where his vote lies.) It is now conventional wisdom that health care reform—the Affordable Care Act, to be precise—will be deemed unconstitutional, at least in part. I tell the students in my class at the City College of New York that “five” is the most powerful number in the nation. For as we have seen, five votes on the Supreme Court can pick a president—voters notwithstanding—and five votes could redefine our understanding of Congress’ power under the Commerce Clause of the Constitution—precedents notwithstanding. So maybe the conservative celebration is merited. Yet it is also plausible that an element of hubris has overtaken the right.