All the way back in the distant misty past of 2005, Supreme Court Justice Antonin Scalia found himself espousing a rather broad interpretation of the Constitution's Commerce Clause in the case of Gonzales v. Raich, as a way to justify strict federal regulation of marijuana. He wrote that, "... where Congress has the authority to enact a regulation of interstate commerce, 'it possesses every power needed to make that regulation effective,'" including regulating things that "substantially affect" commerce, even indirectly.
Last week during the oral arguments in the Affordable Care Act case, his view of the breadth of Congress' power to regulate interstate commerce seemed to be somewhat narrower. He mocked Solicitor General Donald Verrilli's arguments that the individual mandate, which would demonstrably affect tens of millions of people within a sector that controls 17% of the economy, met the same test he had just applied a few years ago to people who grow medicinal marijuana in their backyards.
Consistency being the hobgoblin of small minds, it's probably too much to ask that the considerable intellects of the Court's right wing espouse the same principles from one case to the next. But in reality, legal flip-flopping is not the biggest potential problem in the Supreme Court's consideration of the Affordable Care Act.
The true crisis of this case is the emergence of the broadly held view that this is a political Court with an ideological agenda. No one should be surprised. The five conservatives are doing precisely what they were chosen to do -- take the country back to the days before 1937, the last period when a Supreme Court posed a willful challenge to the economic polices of the elected government. Listening to the conservative justices during oral arguments, and considering other trends in the Court's decisions, it's easy to come to the conclusion that some justices are trying to bring us back to an era where business interests rule, the interests of everyday people are secondary to profit, and economic and social power is limited to a powerful few.
Clearly, the health care case carries enormous stakes. Future cases built on the principles established by a full repudiation of the ACA would threaten the progress made since the New Deal.
The threat of an overtly political Court has provoked President Obama to remind the American people that judicial restraint is supposed to be a conservative value, and to state the rather common-sense hope that "the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
Apparently, this fairly tame expression of concern has sent some conservatives into a tizzy. We now have the remarkable spectacle of Fifth Circuit Court of Appeals Judge Jerry Smith going into full schoolmaster mode, sending Attorney General Eric Holder to detention where he is instructed to write a three-page, single-spaced essay on the principle of the absolute rightness of judicial review. Maybe the next time he feels like needling the president, Judge Smith can save some time and simply send the government lawyers to a blackboard to write a thousand times, "We will never say a mean word about Antonin Scalia again."
Oh, and who is Judge Smith? He is a former chairman of the Texas State GOP Executive Committee who once characterized the League of Women Voters as the "plague of women voters," and referred to the International Women's Year Conference as a "gaggle of outcasts, misfits, and rejects," with "perverted views." He was also an oil-industry lawyer, specializing in federal energy litigation -- a category of cases he now frequently hears as a judge in the oil-soaked Fifth Circuit.
It's a good thing politics has no place in the courts or someone might think this was a judge on a mission.
Speaking of missions, who could fail to be struck by the widely reported use by Justice Antonin Scalia and other conservative justices of chewed-over Republican talking points during oral arguments, and the astonishing lack of discussion of actual case law or Supreme Court precedents? The Republican bugaboos were all there: Broccoli! Cornhusker Kickback! Too much to read! Luckily, they forgot the "death panels."
Sometime toward the end of June we'll find out if this is a Supreme Court that is severely out of touch and out of line. Let's hope the president is right and that in the end a majority of the justices will recognize the stakes, turn faithfully to the Constitution and precedent, and vote to uphold the law. If they don't, neither the Court nor the country will be the same again.
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