Scotusblog: Is this 1936?

Here is my contribution to the Scotusblog symposium on the ACA decision. Some excerpts:

Before the ACA decision was announced, many liberal pundits warned that the Supreme Court was on the verge of repeating its mistake in 1936, when the Court revealed that retained a 5-4 majority hostile to broad regulation of economic activity.

Now that the Court has voted 5-4 to uphold the ACA, I want to suggest a different historical analogy, also focusing on 1936. What if the Court’s ACA decision, like the Court’s controversial 1936 ruling invalidating a state minimum wage law, turns out to the last gasp of a dying constitutional regime?…

[W]hat if Mitt Romney gets elected in 2012, and what if the current 5-4 conservative majority ultimately becomes a 7-2 majority, as Breyer and Ginsburg leave the Court? …. [T]he ACA litigation shows that ideas once deemed beyond the pale in “respectable” legal circles have now become mainstream among elite conservative lawyers….

Liberal pundits were sure that the Commerce Clause challenge to the individual mandate would lose 8-1, and that the Spending Clause challenge to Medicaid expansion was even more frivolous. These pundits may be in for even greater surprises in the relatively near future.

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