UCLA law professor Adam Winkler, who is briefly quoted in TPM’s article about Justice Antonin Scalia’s reversal on the Constitution ahead of the ‘Obamacare’ ruling, explains in further detail why he believes the flip-flop is revealing.
Specifically, Winkler argues, the only thing that has changed since Scalia’s 2005 embrace of the New Deal-era ruling that underlies the basis for the constitutionality of the individual mandate is the “political implications.”
He writes in an email to TPM:
This is typical Scalia. 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 its 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 originalism is a charade.
