Tuesday, June 19, 2012

Tipping Their Hand

As we wait for the Supreme Court to hand down their ruling on the healthcare law like the supplicants awaiting Solomon, the guessing games and tea-leaf reading is going on full-blast.

The latest is word that Justice Antonin Scalia is now in favor of overturning a precedent that goes back to the Roosevelt administration:

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 wrongly decided.


In the preface of his new book, Scalia, writing about himself in the third person, concedes that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here,” the Times reports. He notes that while precedent factored into some, in other cases it’s “because wisdom has come late.”

If Wickard improperly expanded the Commerce Clause, as Scalia now says, then a more limited expression of the federal government’s power to regulate interstate commerce may preclude the authority to require that Americans purchase health insurance, a key pillar of the health law.

This could be bad news for those of us who are hoping the Court will uphold the law and the individual mandate; if Justice Scalia was willing to support a broad interpretation of the Commerce Clause in the past but has since changed his mind, it could mean he’s letting us know that the Court is about to rule against it.

Or not. Books take a long time to publish, and the arrival of his new tome could be based on the publisher’s timetable that just happens to coincide with the end of the term and the ruling. Or Justice Scalia could be setting himself up as the voice of the minority in a ruling that upholds the law and he wants to make sure that his opinion is heard. Or not.

Meanwhile, Justice Ruth Bader Ginsburg is telling audiences that there are “sharp disagreements” among the justices in rulings that will be coming down in the next couple of weeks, and she also had her own comments about dissenting opinions:

I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change.

In other words, it’s all politics. Also, too, both sides do it.