Justice Scalia, the Opportunistic Originalist

June 18, 2012

by Jeremy Leaming

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:

He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.

Once again, we see that Scalia’s orginalism is a charade.

There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

The provision was quickly attacked by the Right as a dire threat to liberty. If the government were able to require many indiviuals to purchase health care insurance, then surely it could also force individuals to buy broccoli and gym memberships, the law’s opponents argued.   

In an ACS Issue Brief, Simon Lazarus blasted the arguments against health care reform as constituting a “bold bid for historic, sweeping constitutional change. If successful, they would be a major step toward reinstating the web of tight constitutional constraints on congressional authority, known as ‘Lochnerism,’ which conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws.”

The Supreme Court’s opinion on the constitutionality of the health care law is coming sometime this month, unless the justices decide the case is not ready to be challenged.

During her featured remarks at the ACS 2012 Convention, Justice Ruth Bader Ginsburg touched upon the rampant media speculation surrounding the challenges to the health care reform law, the likelihood of more sharply divided opinions to come, and the impact of Supreme Court dissents.

In noting the challenges to the minimum coverage provision, Ginsburg said, “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

See video of Ginsburg’s remarks here.