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On the ACA Suit

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I have a piece on the Supreme Court taking the ACA case this term. They should uphold it, but it’s quite likely that they won’t, and if they don’t the political impact will depend on whether the mandate is severable.

To expand a bit on one point, I’ve seen a lot of confident pronouncements that this will be upheld 7-2, no sweat.   I think this is wrong, and in particular it misunderstands Scalia.   It’s true that Scalia doesn’t particularly care about federalism, but this cuts both ways; he’ll free to indulge his political sympathies, and he’s the kind of guy who will go on about “the so-called homosexual agenda” while being interviewed on Fox News in the United States Reports.   Essentially, how you think he’ll vote in this case depends on whether you think he’ll see this case as more akin to federal gun control or federal control of drug smoking hippies, and…I think that question answers itself.    As Paul said yesterday, this will come down to Kennedy, and he could absolutely vote to strike the legislation.

And while I agree that Silberman’s opinion is a little grounds for optimism and might reassure Kennedy if he wants to uphold the bill, can we please stop with the idea that it’s a “fundamental conservative principle” that “the judicial power to strike down laws passed by a democratic majority should be sparingly invoked”?  I’m so old I remember when pundits assured me that at least Bush v. Gore meant that we would never have to hear about how conservatives believe in judicial restraint again, but apparently the death of Earl Warren has yet to be reported in many precincts.

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