Its defenders are laboring to create that impression. In doing so, they're being unfair to some of the Supreme Court's conservative justices.

thomas fullness.jpg


When the Supreme Court decided that marijuana grown by a sick person for personal use could be prohibited by Congress, most conservatives were totally unperturbed. Sure, they'd long complained that legislators abuse their authority to regulate interstate commerce, construing that enumerated power so broadly as to render any limits on it meaningless. On the other hand, a contrary ruling in Gonzales vs. Raich would've undermined their beloved War on Drugs.

That didn't stop Justice Clarence Thomas from dissenting. "Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana," he wrote. "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the Federal Government is no longer one of limited and enumerated powers." Put another way, Justice Thomas voted to strike down the law partly because he couldn't discern any sufficiently strict limiting principle. After all, the Constitution clearly didn't intend for federal power to be unlimited.

He wasn't alone in that judgement. Justice Sandra Day O'Connor dissented in the case too. "The Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach," she wrote. Who is it that persuaded these two to dissent from the majority opinion? Arguing the case was Professor Randy E. Barnett, now widely regarded as the force behind arguments against the constitutionality of the Affordable Care Act, also known as Obamacare. Reading press coverage of the Obamacare hearings, however, you'd never know that two conservative justices, one of them still on the court, were arguing seven years ago that a limiting principle was necessary in Commerce Clause cases. Or that their bygone dissents put them at odds with a Republican president, Congress and attorney general. (And on the same side as some liberal activist groups and the 9th Circuit Court of Appeals.) If the Supreme Court votes to strike down Obamacare, liberal commentators will claim, as many have already, that the outcome proves the court's conservative block is cynically staying loyal to its allies in the Republican Party. Yet that demonstrably isn't true of the dismissive of stare decisis Justice Thomas, and Justice Kennedy has surely shown enough independence to earn the benefit of the doubt.

This isn't to say that liberals won't have anything justifiable to complain about if the court strikes down Obamacare. Were they being consistent, the conservatives who talk about the need for humble judges who defer to legislators -- Newt Gingrich, for example -- ought to be rooting for Obamacare to be upheld. Likewise all the conservatives who complain about activist judges overturning long-held precedent. In the course of voting with the majority in Raich, Scalia cited Wickard vs. Filburn, a 1942 case wherein the Supreme Court found that Congress could prohibit a farmer from growing wheat on his own property for personal consumption.

Said Scalia: "It looks like Wickard to me." As reported by Linda Greenhouse, he then added: "I always used to laugh at Wickard, but that's what Wickard says. Why is this not economic activity? This marijuana that's grown is like wheat. Since it's grown, it doesn't have to be bought elsewhere." Scalia sure seemed to be saying that the precedent in Wickard is laughable, but that it is precedent nonetheless. An individual's decision about whether to buy health insurance arguably has a more plausible connection to interstate commerce than a farmer's decision about growing wheat for personal consumption. Then again, Wickard is dubious law, it ought to have been overturned years ago, and it still ought to be. (Should Congress be empowered to stop hipsters from growing backyard kale? I know a lot of liberals who'd say no.)

A judge can't claim to eschew activism or to humbly defer to legislators if he or she strikes down Obamacare. Doing so would arguably make a judge like Scalia into a hypocrite. Then again, perhaps Raich made him a hypocrite, and voting against Obamacare would be a return to his textualist instincts. It seems at least plausible that when the Framers adopted the Constitution, they would've understood regulating the purchase of health insurance to be a matter reserved to the states and the people, not something covered under the commerce clause. Fidelity to the Constitution as understood when it was adopted is Scalia's avowed standard. The claim that he'll be acting as a cynical partisan if he votes against Obamacare is unsubstantiated.     

So are some other charges being levied against the conservative justices. Dahlia Lithwick of Slate writes that those questioning the individual mandate are intent on taking us back to 1804. "This case isn't so much about freedom from government-mandated broccoli or gyms. It's about freedom from our obligations to one another, freedom from the modern world in which we live," she writes. "It's about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that's been inspected. It's about the freedom to be left alone."

She is wrong.

This case is about the scope of the federal government's power. Anyone familiar with the basic outlines of American federalism knows that whether the federal government is empowered to do something is a different question from whether it can or should be done by state legislators.  

Implicit in Lithwick's analysis is the notion that if the individual mandate fails to pass muster, it'll be impossible to ensure medical care for vulnerable members of society. But why? Is she unaware that President Obama campaigned in 2008 on a package of national health reforms that didn't include the mandate? Or that no one questions the constitutionality of the health-care law that Mitt Romney passed in Massachusetts, and that any other state could copy tomorrow? If Obamacare is struck down, Massachusetts will still have its mandate. Did it in 1804?

To argue that the individual mandate is wise policy, or that it passes constitutional muster, is perfectly reasonable. The conceit that anyone who thinks otherwise has a "dark vision of freedom" totally discounts the central role enumerated powers were meant to play in preserving it. The Framers did not believe, as Lithwick seems to, that if something is worth doing, we're obligated to do it from Washington, D.C. The fact that the Democratic health care agenda has insufficient political support to pass in all 50 states doesn't render the Commerce Clause moot, or transform concerns about a "limiting principle" into a nihilistic endorsement of Social Darwinism.

As much as some conservatives are being hypocrites when they extol humble, non-activist judges, only to urge that Obamacare and decades of Commerce Clause precedent be struck down, so too are many liberals being hypocrites when they insist that striking Obamacare down would discredit the court. As a general matter, the American left has no problem with Supreme Court decisions that reverse the will of democratic majorities. On issues like gay marriage, criminal rights, abortion and the rights of terrorism detainees, the left has been perfectly eager for judges to overrule precedents, presidents, governors and legislators alike. What makes activism appropriate in those instances, yet impermissably radical when applied the Affordable Care Act? "Yeah, the Supreme Court is a political body and always has been. I've never thought otherwise," Kevin Drum writes at Mother Jones. "But I had a hard time believing they could be so brazenly political that they'd overturn a law so plainly supported by past precedent."

Brazenly "political"?

Ideological is a better word. Just as many liberals eagerly support judicial decisions that overturn longstanding precedent when they expand social freedom, many conservatives are eager to overturn longstanding precedent when there is an opportunity to expand (or in some cases restore) economic freedom. It is perfectly fine for advocates to the "living" constitution to prefer the liberal approach, or to argue -- plausibly, in my view -- that Justices Roberts and Alito must support the Affordable Care Act if they're to stay consistent with their previously articulated opinions on the Commerce Clause. But they're on especially thin ground when they declare restorations or even expansions of economic freedom that conservatives want to bring about as self-evidently illegitimate. What standard of jurisprudence would render them so? Not the "living, breathing," spirit-of-the-document standard that many liberals themselves avowedly employ.

We want to hear what you think about this article. Submit a letter to the editor or write to