Rul­ing on health care case hard to pre­dict

Con­ser­va­tive jus­tices could side ei­ther way

The Washington Times Daily - - Front Page - BY PAIGE WIN­FIELD CUN­NING­HAM

A cu­ri­ous thing about this week’s Supreme Court hear­ings on Pres­i­dent Obama’s health care law is that while no­body doubts how the four Demo­crat-ap­pointed jus­tices will de­cide, there is no such cer­tainty on how the Re­pub­li­can ap­pointees will rule in the case, which will go a long way to­ward defin­ing the scope and lim­its of gov­ern­ment power in the 21st cen­tury.

For the past 70 years, lib­eral-minded jus­tices have taken more uni­form views of how far fed­eral power ex­tends while the lines are much more jum­bled when it comes to con­ser­va­tive ju­rispru­dence, court watch­ers say.

Vir­tu­ally ev­ery­one agrees that the four Demo­crat-ap­pointed jus­tices will move to up­hold the law. Few doubt that Obama-ap­pointed Jus­tices Sonya So­tomayor and Elena Ka­gan will join Clin­ton-ap­pointed Jus­tices Ruth Bader Gins­burg and Stephen G. Breyer in up­hold­ing as con­sti­tu­tional the man­date that in­di­vid­u­als ob­tain med­i­cal in­sur­ance and the mas­sive Med­i­caid ex­pan­sion.

But among the five other jus­tices, con­ser­va­tive stal­wart Clarence Thomas is the only one viewed as a sure vote against the man­date and pos­si­bly other parts of the law.

So court watch­ers are left scratch­ing their heads over Jus­tices An­thony M. Kennedy, An­tonin Scalia, Sa­muel An­thony Al­ito Jr. and Chief Jus­tice John G. Roberts Jr. While these four are gen­er­ally re­garded as con­ser­va­tives, con­ser­va­tive ju­rispru­dence isn’t as ide­o­log­i­cally pre­dictable on the is­sues the case raises.

“There’s two types of con­ser­va­tives,” said Rus­sell Wheeler, a court scholar at the Brook­ings In­sti­tu­tion. “There’s the ju­di­cial re­straint school that says un­less the bill is out­landish, we’re not go­ing to sec­ond-guess Congress. And there’s this other view that says the court should be an ac­tive ex­am­iner of what Congress did be­cause Congress will over­step its boundaries.”

Era of def­er­ence

At is­sue in the health care case is whether the Con­sti­tu­tion’s grant to Congress of the power to reg­u­late in­ter­state com­merce cov­ers what Mr. Obama and his Demo­cratic al­lies wrote in the Af­ford­able Care Act.

The orig­i­nal lan­guage of the Con­sti­tu­tion does not seem to grant Congress such an ex­pan­sive power — a point raised by one of the ap­peals court judges, who, nev­er­the­less, up­held the law, say­ing the Supreme Court it­self had ex­panded the doc­u­ment’s purview that far.

The key break came in 1942, in Wickard v. Fil­burn, where the court said Congress can ban wheat pro­duc­tion even if it is grown for pri­vate con­sump­tion. The court rea­soned that some­one pro­duc­ing for his own sup­ply was with­draw­ing him­self from the com­mer­cial trade of wheat and thereby af­fected the mar­ket. Thus a decision not to en­gage in com­merce was “com­merce.”

Con­ser­va­tives gen­er­ally made their peace with the decision in the decades that fol­lowed, ac­cept­ing a much more ac­tive fed­eral gov­ern­ment that grew dra­mat­i­cally in scope through the 1950s and 1960s. By the 1980s, con­ser­va­tives de­ferred to Congress, com­plain­ing that jus­tices were be­ing too ac­tivist and leg­is­lat­ing from the bench.

“The de­fault con­ser­va­tive po­si­tion af­ter the ’60s and ’70s was that judges should be more re­strained and de­fer more to the pop­u­lar, po­lit­i­cal branches,” said Ilya Shapiro, se­nior fel­low at the Cato In­sti­tute.

Nar­row­ing com­merce clause

But now, as con­ser­va­tives call on the court to over­turn Mr. Obama’s sig­na­ture do­mes­tic achieve­ment, they want the court not to de­fer to the pop­u­lar branches.

The push is be­ing led by a new type of con­ser­va­tive that has emerged in re­cent years, schol­ars say. These con­ser­va­tives em­pha­size what the Found­ing Fa­thers in­tended when they wrote the Con­sti­tu­tion and want the court to in­ter­pret the com­merce clause as it did be­fore 1942.

Take Jus­tice Scalia and Jus­tice Kennedy.

They have left be­hind a trail of rul­ings that gen­er­ally in­di­cate more re­stric­tive views of Congress’ au­thor­ity to reg­u­late com­merce, both agree­ing with U.S. v. Lopez in 1995 and U.S. v. Mor­ri­son in 2000, in which the court limited the gov­ern­ment’s com­merce clause power.

In Lopez, the court de­nied that the com­merce clause gave Congress the power to leg­is­late public schools as gunfree zones; in Mor­ri­son, the jus­tices said the Vi­o­lence Against Women Act was not within the scope of the clause’s pow­ers.

But in the court’s last ma­jor test of the com­merce clause, the 2005 case Gon­za­les v. Raich, Jus­tices Kennedy and Scalia handed more mus­cle to the gov­ern­ment than some con­ser­va­tives would like, agree­ing with the ma­jor­ity that grow­ing mar­i­juana for per­sonal use is eco­nomic ac­tiv­ity that Congress can reg­u­late.

To sup­port­ers of the law, Jus­tice Scalia’s decision is a dead give­away that he will up­hold it.

“If he’s hon­est, there’s no way he can vote to strike down the Af­ford­able Care Act,” said Ian Mill­hiser, a pol­icy an­a­lyst for the Cen­ter for Amer­i­can Progress. “There is no wrig­gle room in his Raich opin­ion.”

‘Nec­es­sary and proper’

But op­po­nents point out that Jus­tice Scalia wrote a more nu­anced sep­a­rate opin­ion. He said that be­cause Congress has the power to ban mar­i­juana, the Con­sti­tu­tion’s “nec­es­sary and proper” clause, which states that Congress can en­act laws en­abling it to carry out its con­sti­tu­tional du­ties, means it ac­cord­ingly has the power to reg­u­late in­trastate com­merce in mar­i­juana.

“If Scalia and Kennedy be­lieve the in­di­vid­ual man­date is not con­sti­tu­tional and want to vote that way, there’s noth­ing in Raich that would pre­vent them from do­ing so,” said Ilya Somin, a law pro­fes­sor at Ge­orge Ma­son Univer­sity. “You wouldn’t have to change a jot or tit­tle in Raich.”

But both sides agree that Jus­tice Kennedy is even more likely to up­hold the law.

He didn’t of­fer any clar­i­fi­ca­tion in the Raich case, in­stead join­ing the ma­jor­ity opin­ion. Even though he agreed with Lopez, he took pains to write a con­cur­ring opin­ion in which he stressed that the fed­eral gov­ern­ment has wide au­thor­ity to reg­u­late eco­nomic ac­tiv­ity.

As the long­time swing vote on the court, Jus­tice Kennedy once again is gen­er­ally ex­pected to serve as the pivot on which the out­come rests.

“If he votes to up­hold, I could see the chief jus­tice join­ing him pos­si­bly,” Mr. Shapiro said. “I can’t see that if Kennedy votes to strike down that, the chief jus­tice or any­one else would go to the other side.”

As le­gal an­a­lysts on both sides sift through pages of opin­ion from decades of cases, try­ing to guess where the jus­tices will land and pick out tid­bits of hope that the court will side with them, they have fewer clues from Chief Jus­tice Roberts and Jus­tice Al­ito, who joined the court in 2005 and 2006, re­spec­tively.

The only ma­jor sig­nal re­cently comes from the 2010 case U.S. v. Com­stock, in which all the jus­tices ex­cept Jus­tices Thomas and Scalia al­lowed a broader ap­pli­ca­tion of the “nec­es­sary and proper” clause — a likely rea­son why the ad­min­is­tra­tion is es­pe­cially fo­cus­ing on that par­tic­u­lar fed­eral power in its ar­gu­ments.

The court ruled that be­cause Congress can ban child pornog­ra­phy, the “nec­es­sary and proper” clause al­lows it to keep child pornog­ra­phers off the streets longer by com­mit­ting some of them be­yond when they would oth­er­wise be re­leased.

While Jus­tices Al­ito and Kennedy of­fered nar­rower ra­tio­nales than the other jus­tices for their decision, Chief Jus­tice Roberts didn’t — and could have been send­ing a sig­nal, Mr. Shapiro said.

“If Roberts is go­ing to take the opin­ion he did in Com­stock, it is not pos­si­ble for him to strike down the Af­ford­able Care Act un­less he wants to en­gage in pure hackery,” Mr. Shapiro said. “The law was so much fur­ther on the mar­gins of con­gres­sional power than the Af­ford­able Care Act.”

AS­SO­CI­ATED PRESS

Mem­bers of Chris­tian faith or­ga­ni­za­tions kneel in prayer in front of the Supreme Court in Washington on Sun­day as part of “En­cir­cle the Court in Prayer” on the eve of the Supreme Court ar­gu­ments on Pres­i­dent Obama’s health care leg­is­la­tion.

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