It’s easy to imagine that two generations of aggressive judicial advocacy and court-packing was leading up to this moment yesterday before the Supreme Court. This would be the prize.For all of those who thought the conservative judicial push was principally about stuff like Roe v. Wade, as some have suggested to me over the last day or so, just go to a Federalist Society meeting. The real issue has always been the regulatory state. In any case, it is the height of judicial activism for the Court to consider striking down legislation on grounds that was barely considered — certainly not in the mainstream of jurisprudence — only two years before when the legislation was being considered. But what struck me more was how the the critical questions from the conservative bloc on the Court grappled so little with the actual economic role of health care provisions in society and the systemic market failure. These would seem to be precisely the issues the Commerce Clause is meant to address. Simply because the problem is serious doesn’t mean every possible solution is constitutional. But again, no real grappling with the practical issues the law was meant to address but rather a hyper-focus on academic and ideological points.
‘Broccoli’ was the key moment.
To read some really great reporting on just what has happened so far, go here.