The Conservative Four

[Robert Sheridan]

As I understand the so-called Revolution of 1937, the Court, with 
Justice Roberts's famous "Switch In Time That Saved Nine," was finally 
able to come around and state its new, or New Deal, position:  No longer 
would it interfere with social reform legislation enacted by 
legislatures, state and federal, the exceptions being those instances 
encompassed by Footnote 4, Carolene, mainly on civil rights for the 
disfavored and powerless.  Perhaps this latter should include sick 
people too poor to afford insurance.  But here the legislation seeks to 
protect these weak and powerless.  The conservative opposition would 
have the effect of unprotecting them.

The world has changed since the New Deal and now we have a new, powerful 
group of four conservatives, who could give the Old Court a run for its 
money, comprising a powerful wing of the Court.  Judicial activism for 
conservatives is alive and well, viz. Bush v. Gore (2000).  
Incidentally, I don't recall seeing rioting in the streets behind this 
latter day Dred Scott opinion, amounting to a coup d'etat, in comparison 
with which Health Care, like Social Security, is peanuts.

What strikes me about Conlaw is that as law, it is finite; as doctrine, 
it is infinite.  Meaning that whenever new law is required to reach a 
result, the Court can always dip into the ocean of alleged moral/legal 
values to find one capable of being designed by the tailor to suit the 
patron. After all, questions of moral/legal value have been written 
about since at least the Old Testament, thus there is plenty of fodder 
out of which to create new doctrine, which, with the addition of the 
vote of Justice Kennedy, becomes new Conlaw.  The only remaining 
question will be whether you like it.  And then we go 'round and 'round 
again until pop goes the weasel.  I'm betting that Kennedy upholds the 
new law.  He seems to want to see the country survive as a decent place 
to raise your grandkids.

In sum, it wouldn't surprise me to see at least one wing of the Court 
seize on some little-used but convenient doctrine (as the Delegated 
Powers doctrine was used back in the day) pulled out of the Conlaw Hat 
to try to strike down the new PPHA (Patient Protection and Healthcare 
Act).  If I'm wrong about Kennedy, why then, as has been pointed out, 
we'd be back in the Lochner Era all over again, working towards the next 
1937.

What do you think it would take for the Conservative Four to uphold PPHA?

rs

Perhaps if we thought of the new law as a civil rights measure instead 
of as an exercise of the commerce power, the picture might clarify.  
Didn't Pres. Obama claim as much in extolling the passage on Sunday?  
Yet the Civil Rights Act of 1964 was upheld as a commerce power measure 
in Ollie's BBQ and Heart of Atlanta Motel, wasn't it.  Sometimes you 
have to take what you can get.  Conlaw isn't any prettier than sausage 
making and sometimes far less.