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Daily Kos
6/29/12 1:20 PM rss@dailykos.com
Upholding ACA, laying groundwork to strike down the New Deal
In my post yesterday, A dark cloud on this sunny day: Roberts Court embraces Constitution in Exile, I argued that while the result of the case was wonderful for millions of Americans, the Constitution in Exile poison pills Chief Justice Roberts dropped, ideas that were agreed with by the other four right-wing members of the Court, created great risk for our modern national government.
In sum, the ACA decision makes the Supreme Court an even more important issue in the upcoming election, not less of an issue. Why? Because whether the pernicious ideas the Chief Justice dropped in his opinion grow into established constitutional branches of our jurisprudence largely depends on who the future members of the Court will be. We all know that four of our current justices are in their 70s. We wish them all good health (though we wish some of them—Scalia! Cough! Kennedy! Cough!—decide to enjoy their autumn years in retirement), but openings in the Court seem likely over the next four years. Who names the replacements is critical.
Jack Balkin, who in an interview with Adam Bonin and me presciently described the mandate as an exercise of the taxing power by Congress, wrote yesterday:
It’s hard to predict what will flow from this opinion doctrinally. If President Obama manages to appoint a majority of liberal justices in his second term, most of the innovations in this case will be forgotten. The new spending clause doctrines will be confined, and the Commerce Clause language treated as dicta or made practically irrelevant. If Mitt Romney wins, on the other hand, he may be able to appoint a strong conservative majority to work with Chief Justice Roberts. Then, in hindsight, Roberts’ seemingly compromised opinion won’t be very compromised at all. His apparent flip-flop won’t be understood as a change of mind. Instead, his opinion may turn out, in hindsight, to be the beginning of an important transformation in constitutional law. What will happen can’t be deduced from the four corners of these documents. It will depend on the Supreme Court appointments of the next decade
Translation: There is no more important progressive project in this election year than the reelection of President Barack Obama.
