Federal Judge Roger Vinson, a Ronald Reagan appointee, is expected to issue a ruling on the constitutionality of the Affordable Care Act later today that will declare all or part of the law unconstitutional. Andrew Cohen notes that Justices Antonin Scalia and Clarence Thomas recently telegraphed their intentions in a dissent written by Thomas and joined by Scalia accusing the court of "nullifying" its "recent commerce clause jurisprudence."
In the ongoing debate over the Commerce Clause and the health care law, these are akin to fighting words. This is the advocacy rhetoric of the Tea Party. It is the partisan language of Sen. Tom Coburn (R-Okla.). It is the hyperbolic theme of the fiercest opponents of the Patient Protection Act. And coming as it does from the two justices -- unsolicited, unnecessary to resolve Alderman, unrepentant about its link to current political discourse -- the paragraph confirms to the world that no more than seven votes on the Supreme Court are still in play over the constitutionality of the federal health care measure. That this is not a surprise coming from these two jurists makes the development no less extraordinary -- and far more important than anything Judge Vinson can or will say in his looming order.
I'm going to be reading the order, because I think it's interesting to speculate what routes the conservative majority on the court might take in order to justify ignoring precedent. Judge Henry Hudson in particular seemed to tailor his ruling in such a way as to allow Justice Scalia to wiggle out of his broad interpretation of the Commerce Clause in Gonzales v. Raich.
Cohen notes that only two judges have held the law unconstitutional while many other judges have not, leading him to question whether both sides will "overreact." But this misses the point of the conservative "overreaction" to such rulings. Conservatives aren't so much "overreacting" as they are trying to portray the attack on the individual mandate as a righteous populist uprising, the better to convince the other three Republican appointees on the court to join in the interpretation of the commerce clause Thomas and Scalia have signed on to in Alderman. They understand the court is not independent of politics -- and they believe the court's occasional swing vote, Justice Anthony Kennedy, is more likely to be moved to rule based on popular opinion than legal precedent. So it makes perfect sense for them to focus on the law being overruled, rather than on the multiple times it has been upheld. They rightfully see this as a political fight, rather than a strictly legal one.
As for Scalia and Thomas, its more shocking that people are shocked by the naked partisanship of the court than it is actually shocking that the court is partisan.
UPDATE: Vinson strikes down the whole thing, based at least in part on Congress' failure to include a "severability" clause in the law.
