Obama's comments about the Supreme Court made sense

I’ve tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified (and quite unlike more defensible instances of judicial activism, such as Brown v. Board of Education): It’d be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn’t happened since those early New Deal cases, just as Obama suggested…

Among the most famous of these cases was the one that Andrew Koppelman, the Northwestern Law Professor, described at TNR last week: Bailey v. Drexel Furniture Company, a 1922 decision in which the Court invalidated a federal law outlawing child labor. As Koppelman noted, that case had striking parallels to the case of the Affordable Care Act.

The Supreme Court eventually repudiated the logic in Drexel Furniture, much as it did the logic of Lochner. Partly, the justices were reacting to popular sentiment (and, in some tellings, President Franklin Roosevelt’s threats to pack the court with more sympathetic justices.) But partly they were recognizing that the country really had changed: In the contemporary, integrated economy, government in general and the federal government in particular needed more regulatory authority in order to keep capitalism functioning and to protect citizens from harm.