The Conservative Four
rs at robertsheridan.com
Tue Mar 23 21:32:50 PDT 2010
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
What do you think it would take for the Conservative Four to uphold PPHA?
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.
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