Professor Adam Winkler

by Jeremy Leaming

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:

He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.

Once again, we see that Scalia’s orginalism is a charade.

There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

By Adam Winkler, professor of law, UCLA School of Law. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.

The two days of oral argument into President Obama's health care reform law have been notable for their lack of surprises.

On the first day, the Court considered whether the Anti-Injunction Act barred the lawsuits challenging the individual mandate. Although this was always considered the sleeper issue of the case, there are few stronger trends in the Supreme Court these days than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United; and repeatedly wade into presidential war powers should have little hesitancy reaching out to decide the fate of the Affordable Care Act. So when the Justices breezily ignored the plain language of the AIA, it was predictable. The Court wants to decide all of the major issues in American politics, including this.

On day two, the Court looked at the individual mandate. One thing that always seemed beyond the pale to me was the idea that, when it came to the mandate, the votes of Justice Scalia and Chief Justice Roberts were in play. Just because Scalia voted to uphold the federal drug laws in Gonzalez v. Raich should never have fooled anyone into thinking he'd vote to uphold the mandate, and his aggressive questioning of the government on the mandate indicated he's likely to vote to strike it down. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation.