The ObamaCare ruling: Is this 1936?

What if the Court’s ACA decision, like the Court’s controversial 1936 ruling invalidating a state minimum wage law, turns out to the last gasp of a dying constitutional regime?…

Like the other Justice Roberts in the 1936, the current Justice Roberts unexpectedly voted with a 5-4 majority to continue the old regime. But while the Justices continued to dance in 1936, the music had died. Not only did the first Justice Roberts soon become a consistent vote to uphold New Deal legislation, but a series of FDR appointments unleashed a wave of liberal jurisprudence that ultimately went far beyond the Progressives’ original goal of keeping the courts out of economic matters.

The conservatives on the Court have already rewritten the constitutional law of campaign finance, sovereign immunity, and more, but only tenuously with five vote majorities. A 7-2 or better majority would expand those rulings, but, more important, expand conservative jurisprudence into areas not currently considered in play. What would happen to the Contracts Clause with a 7-2 conservative majority? Could vouchers for religious grade schools become mandatory, not just permitted? What powers now denied to the states would be allowed, and what powers now allowed to the federal government would be denied? Or maybe disputes between more “activist” and less “activist” Justices, and between libertarian-leaning and more authoritarian conservative woulds mimic the infamous Douglas-Black-Frankfurter debates of the early Warren Court. The Old regime would be overthrown, but progress toward affirmative conservative goals for an indefinite period of time.

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