In his post below, my co-blogger Randy channels Seth Myers and asks if those who follow the Supreme Court closely think that the Court would actually uphold hypothetical legislation requiring a person to have health care coverage:
[I]n the absence of any clear super precedent, are my more realist colleagues absolutely confident that the four more “conservative” justices–and maybe even Justice Kennedy who cares something about liberty when it does not involve drugs–won’t see some “principled” difference between a federal prohibition against growing something both fungible and intoxicating and a universal federal mandate to buy a service from a private company? Really? Really??
I can’t speak or everyone, of course, but I am personally confident that the current Supreme Court would not strike down such legislation. The Supreme Court’s federalism decisions in the last 15 years have followed a relatively predictable trend, and such a ruling would be dramatically out of step with that trend. As I wrote over at SCOTUSblog on the day Gonzales v. Raich was handed down in 2005:
I don’t think this opinion should come as a surprise. When was the last time that the pro-federalism side won in a major federalism case at the Supreme Court? As best I can recall, it’s been a long time; in the last few years, at least since Bush v. Gore, pro-federalism arguments have repeatedly lost.
More broadly, it seems to me that the theme of the Rehnquist Court’s federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn’t have a lot of practical importance, there’s a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.
As soon as the issue takes on practical importance, however, the votes generally aren’t there. If anything, the surprise today was that there were three votes for the pro-federalism side.
I would think the personnel changes at the Court since I wrote that post would make this more true rather than less.