While we wait for the Supreme Court’s decision on the Affordable Care Act, there’s increasing speculation about how Justice Antonin Scalia will rule. The answer now appears rather obvious, with the far-right jurist starting to show his cards.
Before we get to that, though, consider a little history. I often think about this op-ed Harvard Law scholar Laurence Tribe wrote last year, arguing that proponents of the law have nothing to fear – of course a high court majority will uphold the law, because it’s such a “clear” and “open and shut” case. Tribe practically chided folks like me for questioning whether conservative justices would be responsible in this case – Scalia may be conservative, but to think he’d ignore the law is “to insult both his intellect and his integrity.”
A year later, as Sahil Kapur reports, Scalia’s intellect and integrity are looking a lot shakier.
Now, within days of the historic ruling, Scalia is releasing a new book in which he finds fault with a Roosevelt-era Supreme Court decision that forms a critical part of the legal undergirding for the health care reform law. For Scalia, that’s a dramatic turnaround, because he has previously embraced the premise of that decision in an opinion he authored in 2005 that supporters of the health care law have frequently cited.
In Scalia’s new book, a 500-page disquisition on statutory construction being published this week, he says the landmark 1942 ruling Wickard v. Filburn – which has served as the lynchpin of the federal government’s broad authority to regulate interstate economic activities under the Constitution’s Commerce Clause – was improperly decided.
According to an advance review in the New York Times, Scalia writes that Wickard “expanded the Commerce Clause beyond all reason” by deciding that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”
When did Scalia reach this conclusion? Well, quite recently, actually. Indeed, the far-right justice seemed to change his mind about the Commerce Clause right around the time he was looking for a way to rule against the health care law.
Scalia himself cited Wickard in his 2005 opinion in Gonzales v. Raich, concurring with a 6-3 majority that said Congress may, under the Commerce Clause, prohibit a licensed medical marijuana patient from growing pot in his or her backyard even if it’s legal in the state. A central foundation for that sweeping federal power, the winning side argued, flowed from Wickard.
At the time, Scalia emphatically agreed, writing in his concurring opinion that “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
And how does Scalia explain the shift? In his book, he now claims “wisdom has come late.”
I see. So, Antonin Scalia waited until he was 76 years old, and had been a justice on the high court for more than a quarter of a century, and then he decided his perspective, rulings, and understanding of the Commerce Clause were all wrong – just in time to rule against a Democratic health care law that features a Republican idea that was assumed by everyone to be entirely constitutional.
I hope Prof. Tribe will forgive me if I feel inclined to insult both Scalia’s intellect and his integrity.