The Conservative Four

rkessler at rkessler at
Wed Mar 24 06:56:56 PDT 2010

Back to the Lochner era? Get real!  The very remote possibility of a
conservative Court striking down the new health care bill is turning a lot
of people into chicken littles. I don't have time to even start
distinguishing the two cases and eras.
Ray Kessler
Prof. of Criminal Justice
Sul Ross State University

> 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.
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