While we’re pondering whether certain justices might reject their prior jurisprudence when the Affordable Care Act reaches the Supreme Court, Ian Millhiser brings another issue to the table regarding standing:
It’s worth noting, as well, that the absence-of-standing argument is likely to resonate with conservatives on the Supreme Court. The most important decision limiting access to federal courts under the standing doctrine — Lujan v. Defenders of Wildlife — was written by Justice Scalia and litigated by Chief Justice Roberts. If just one of the conservative justices decide that the anti-health reform plaintiffs lack standing, they will provide the fifth vote necessary to prevent the Act from being struck down until after the minimum coverage provision goes into effect in 2014.
I suppose that one way conservatives could avoid embarrassing contradictions in their prior jurisprudence would be to dismiss the case on standing. While most of my attention recently has focused on Justice Antonin Scalia’s interpretation of the Commerce Clause in Raich, Roberts signed onto Justice Stephen Breyer‘s opinion in Comstock which, through its interpretation of the Necessary and Proper Clause, Jeffrey Toobin described as “a legal roadmap for protecting the constitutionality of health-care reform. ”
If as Milhiser suggests, they dismissed the case, they wouldn’t have to write themselves into pretty little pretzels trying to explain away their prior jurisprudence, and they also wouldn’t take heat individually if any of them ultimately voted to uphold the law. But the court is pretty sensitive to public opinion, so it’s hard to see them ducking an issue this important to this many people.
