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Judicial Activism, Part MMCCCXXVIII

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I have a Daily Beast article regarding the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments.

The HCR bill does put a lot of jurisprudential and political conservatives in a tricky position. Consider the view advocated by Orin Kerr, which is that

(a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction. I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.

This strikes me as a wild underestimate of the odds, for reasons I touch on in the DB article. What’s interesting to me is whether Kerr thinks the SCOTUS should uphold the individual mandate under these circumstances, and if so why?

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