I noted here on June 20 that the left had a really bad day at the Supreme Court, and they had another one yesterday especially with the decision striking down Arizona’s welfare-for-politicians campaign matching funds scheme in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. (Just try to say the plaintiff’s name three times fast. Or just once fast.) It was another 5 – 4 decision along familiar lines, which is sure to set off a fresh round of rage on the left. Ah, if only Anthony hadn’t tweeted his Weiner, I’m sure his crusade to impeach Justice Clarence Thomas would have succeeded by now. (Sorry; just can’t help it.)
In that earlier post I had flagged the Bond v. US decision as a possible straw in the wind about Justice Anthony Kennedy’s possible inclinations about the inevitable Obamacare case (while misstating the holding somewhat–thanks to commenters for pointing that out; that’s what I get for reading the syllabus too quickly). Today David Rivkin and Lee Casey, the Wall Street Journal editorial page’s unofficial legal affairs correspondents, make the same point about Kennedy’s language in Bond:
For Supreme Court watchers, Bond is a profound reaffirmation of the centrality of the state-federal “dual sovereignty” system. That’s why the decision is bad news for those who defend ObamaCare–the most extravagant challenge to that dual system in our history. . .
Justice Kennedy’s opinion posits a vision of federalism in which “[t]he principles of limited national powers and state sovereignty are intertwined.” The decision makes it particularly clear that “[i]impermissible interference with state sovereignty is not within the enumerated powers of the National Government.” It adds, “an action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States.”
Well, not so fast, argues Eric Claeys of George Mason Law School in the current issue of National Affairs. Claeys, a former clerk for Chief Justice Rehnquist, thinks there is a good chance that even the Court’s conservative justices might not vote to strike down the individual mandate at the heart of Obamacare:
But this conventional wisdom [that the five conservatives will vote to strike down] is wrong — and adhering to it could prove highly counterproductive for Obamacare’s opponents. It is wrong largely because it assumes that the Roberts Court’s “judicial conservatives” are members of a monolithic bloc. But in fact, conservative judges are often pulled in different directions by two competing attachments: to “originalism” and to “judicial restraint.” In constitutional cases that touch on questions of federalism, Justice Thomas has generally voted and reasoned as a committed originalist. Justices Scalia and Alito, and Chief Justice Roberts, however, have often appealed to judicial restraint to uphold acts of Congress that may be in tension with an originalist reading of the Constitution. One or more of these three judicial conservatives may well do the same with regard to Obamacare.
Claeys thinks, and I agree, that a direct political strategy of congressional repeal is necessary. I’ve worried from the beginning that relying on the Supreme Court to deliver a political victory would dissipate conservative energy against Obamacare in particular along with Obama’s broader agenda. In fact, a Supreme Court victory in favor Obamacare would be a huge blow, as Obama would claim it as a signal of legitimacy for the plan.
I’ll add by the way that Claeys is on to something important about the large shadings of jurisprudence among the Court’s conservative block. Whenever I hear a Republican politician say (as Giuliani did in 2008, and Bush in 2000) that he’d appoint justices like Thomas and Scalia, I usually ask: “Okay, which one? They’re actually quite different in their originalism.” A clever reporter might ask some time. But then, clever reporters on this subject are as rare as unicorns.