|A Cardboard Reagan for the Ages|
David Savage at LA Times:
When the incoming Chief Justice John G. Roberts Jr. came before the Senate for confirmation seven years ago, President Reagan's solicitor general gave him a warm endorsement as a "careful, modest" judge.
"He's not a man on a mission," Harvard Law professor Charles Fried testified, adding that Roberts was not likely "to embark on constitutional adventures."
But two years ago, the Roberts-led Supreme Court struck down the federal and state laws that for a century had barred corporations and unions from pouring money into election campaigns.
And last week, the court's conservatives, including Roberts, suggested they may well strike down President Obama's healthcare law as unconstitutional. If so, it would be the first time since 1936 that the Supreme Court voided a major federal regulatory law.
After the healthcare arguments, Fried was among those who worried aloud about the prospect of the Roberts court embarking on a new era of judicial activism.
If the court were to invalidate the healthcare law, "It would be more problematic than Bush v. Gore," Fried said in an interview, referring to the case that decided the 2000 presidential race. "It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before."
His comments highlight a growing divide between an earlier generation of judicial conservatives who stressed a small role for the courts in deciding national controversies and many of today's conservative justices who are more inclined to rein in the government.
At the heart of last week's argument over the healthcare law was a dispute over power. Does Congress or the Supreme Court define the limits of economic regulation?
The Obama administration's lawyers, relying on 20th century precedents, said Congress has broad authority to "regulate commerce" in national markets, including health insurance. Regardless of whether the healthcare law's requirement that everyone have insurance is a smart or good regulation, Solicitor Gen. Donald B. Verrilli Jr. said the "Constitution leaves [this] to the judgment of Congress and the democratically accountable branches of government."
The court's leading conservatives objected and spoke of their duty to enforce limits set by the Constitution. If the government can force people to enter the market and buy insurance, Justice Antonin Scalia asked, "what's left?"
"The federal government is not supposed to be a government that has all powers," he said.
Are "there any limits" on Congress if this stands? asked Justice Anthony M. Kennedy. Roberts said "all bets are off" if the government can regulate an industry by forcing people to buy a private product.
Fried had confidently predicted the law would be easily upheld. He said he was taken aback by the tone of the arguments. "The vehemence they displayed was totally inappropriate. They seemed to adopt the tea party slogans," he said.
Pepperdine law professor Douglas W. Kmiec, another top Justice Department lawyer under Reagan, said he hoped the justices would "come to their senses" and uphold the law as a reasonable regulation of interstate commerce...