Somin Comments on Health Care Case in "Fantasy Court"

As retired Supreme Court Associate Justice John Paul Stevens receives the Presidential Medal of Freedom this spring, bringing the number of justices so honored to nine, Professor Ilya Somin comments in an article that speculates how those nine justices might have voted on the health care law currently being reviewed by today's Court.

Somin argues that it is a mistake to compare the current Supreme Court solely with the medal recipients who operated in what he calls, "the highly aberrational period of the 1940s to the 1980s, when the conventional wisdom among legal elites was that Congress could do pretty much anything it wanted under the commerce clause."

"I think O'Connor would very likely have voted to strike down the mandate based on her strong dissenting opinion in [a 2005 case upholding a federal ban on cultivating medical marijuana for personal consumption] and her staunch advocacy of judicial enforcement of limits to federal power in many other cases," Somin states.

"The overwhelming majority of justices appointed in the 18th, 19th, and early 20th centuries would have voted to strike down the mandate," Somin believes, noting that the Supreme Court did not concede Congress' ability to regulate insurance sales until 1944. "The same goes for many of the justices appointed over the last 25 years, as the oral argument in the mandate case suggests."

Health Care Case in Fantasy Court: What Would Honored Justices Say? The Huffington Post, May 9, 2012. By Mike Sacks.

"Call it 'fantasy Court.' It comprises the nine justices whom presidents over the past half-century have selected for the nation's highest civilian honor. It also serves as a kind of unicorn pasture, a place where we can find Democratic and Republican appointees from not so long ago willingly agreeing to defer to Congress' broad power to remedy national problems.

"'The mandate would have been upheld every moment from 1937 until 2009,' observed University of Texas School of Law professor Lucas Powe, author of 'The Supreme Court and the American Elite, 1789-2008.' But in late 2009, a Heritage Foundation memorandum written by libertarian Georgetown Law professor Randy Barnett gave the first full airing to the argument that the Affordable Care Act's mandatory coverage provision exceeded Congress' power to regulate interstate commerce. After that, 'it became part of Republican Party orthodoxy that Obamacare had to be unconstitutional,' Powe said."