Reading the transcript and listening to the audio of day 2 of the Obamacare argument, I was struck by the sheer intellectual laziness and complacency of Justice Breyer. To liken him to a rodeo clown would be to credit him with too much energy. Referring to the key New Deal Commerce Clause case of Wickard v. Filburn, Breyer asked, for example: “Didn’t they make that man growing his own wheat go into the market and buy other wheat for his — for his cows?”
Well, actually, no, Justice Breyer, they didn’t. “They” — Congress in an amendment to the Agricultural Adjustment Act of 1938 — limited the amount of wheat farmer Filburn could grow on his farm under a quota set for him by the geniuses in Washington (or penalized him for exceeding the quota). “They” didn’t make him go into the market and buy wheat for his cows. That’s the point — the point Randy Barnett has argued for the past few years.
The distinction between the case vaguely recalled by Justice Breyer and the one decided by the Supreme Court in the Wickard case might be the difference between a pass or a fail on a fairly graded Con law exam in law school. It goes to the heart of the Obamacare case. Justice Breyer has apparently been pursuing other intersts over the past few months.
As Jeffrey Anderson and Conn Carroll have observed, this wasn’t necessarily Justice Breyer’s only laugh-out-loud moment during day 2 of the oral argument. And if Justice Breyer were not a party-line liberal, you would have heard about it.