The New York Times’ long-time SCOTUS reporter Linda Greenhouse takes a look at how the current court might look at the challenges to the health care reform law:
The challengers invoke and seek to build upon the Rehnquist court’s “federalism revolution” that flowered briefly during the 1990’s. In a series of 5-to-4 rulings, the court took a view of Congressional authority that was narrower than at any time since the early New Deal. The court struck down a federal law that barred guns near schools, on the ground that possession of a gun near a school was not the type of activity that the Constitution’s Commerce Clause authorized Congress to regulate. It ruled that Congress could not require states to give their employees the protections of the federal laws against discrimination on the basis of age or disability. It ruled that the federal government couldn’t “commandeer” state officials to perform federal functions like federally mandated background checks of gun purchasers.
As Greenhouse points out, though, the Roberts Court is very, very different from the 1990s Rehnquist Court when it comes to issues regarding the power of the Federal Government:
Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.
Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the “special solicitude” that the court’s majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general’s effort to prevent doctors in Oregon from cooperating with that state’s assisted-suicide law.
And, as Damon Root points out, Antonin Scalia can’t be trusted on this issue either:
It’s also worth noting that conservative Justice Antonin Scalia did his part to thwart that “federalism revolution” by siding with the majority in 2005’s disastrous Gonzales v. Raich, which held that the intrastate cultivation and consumption of marijuana somehow still counted as interstate commerce, resulting in the Court striking down California’s popular medical marijuana law.
I noted last week that, as a matter of law, the odds are against the cases challenging the health care law. As Greenhouse and Root demonstrate, it also appears that we’re dealing with a Supreme Court that is not at all inclined to be sympathetic to arguments that limit the power of Congress.
Right now, I would say that the only vote that could probably be counted on to declare ObamaCare unconstitutional is Clarence Thomas’.