Scott Lemieux notices something key about the Supreme Court's decision not to hear a case involving a ban on selling bulletproof vests to ex-felons, in which Justice Antonin Scalia joined a dissent filed by Justice Clarence Thomas arguing that the refusal to take the case represented "the nullification of [the court's] recent commerce clause jurisprudence." Or in other words, the broad reading of the commerce clause necessary to justify the constitutionality of the Affordable Care Act is a dead letter:
On the other hand, as Rochelle Borboff notes, perhaps more important is the fact that Roberts, Alito, and Kennedy declined to join the Thomas dissent. This doesn't mean that these justices won't hold the mandate unconstitutional -- they may just be playing it close to the vest. It would be a mistake to read too much into this. But I've always thought that there will probably be at least five votes holding the mandate constitutional, and nothing about this week's case dissuades me.
I'm fairly certain Scalia will vote to turn over the ACA, because he wants the federal government to regulate dirty hippies smoking pot but he doesn't think it should make sure everyone has health insurance. And I'm also fairly certain he'll use Judge Henry Hudson's distinction between "activity" and "inactivity" to do so -- after all, that's what it's there for. The question is how partisan the other conservative justices will be feeling -- I think Kennedy is the only one whose vote is in doubt.
