Is Blaisdell still good law?

[James G. Wilson]

    Assume the Louisiana Legislature passes a law suspending all 
mortgage and credit card payments for six months to help its citizens 
recover from the disasters, both natural and man-made, that are 
afflicting them.  I am more than willing to concede that such a law is 
an "impairment of contract," but is it an impermissible one in light of 
Home Building and Loan Ass'n v. Blaisdell?   Right now, the case is too 
close to call.   If one believes, as I do, that the two new Bush 
nominees are extremely sympathetic to the Bushian presumption that 
governments have little or no legitimacy when it comes to solving 
domestic social problems, they could easily overrule/distinguish 
Blaisdell.  Thomas would almost certainly join in on originalist 
grounds.  Scalia seems a likely ally, unless he finds Blaisdell to have 
created some sort of a "tradition."   That leaves Justices Kennedy and 
Breyer in the balance.  As we saw in Lopez, Kennedy seems reluctant to 
repeal the New Deal--to make the Supreme Court the leader in the 
formation of economic and social policy-- but he is notoriously 
unpredictable (Of course, this hypothetical demonstrates how he now has  
O'Connor's role as the crucial swing vote in most cases).  Breyer is 
very sympathetic to private power; he might find this deprivation of 
corporate profits to be unconstitutional.  Needless to say, if Bush can 
replace one of the remaining moderate/liberals, the precedent becomes 
much more tenuous.  
 
     It would be more than symbolic if the new Supreme Court reversed 
Blaisdell, which, of course, was a leading indicator of the Court's 
eventual validation of the New Deal.  It would be the 
constitutionalization of aristocratic barbarism.   
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