- The Washington Times - Sunday, March 25, 2012

A curious thing about this week’s Supreme Court hearings on President Obama’s health care law is that while nobody doubts how the four Democrat-appointed justices will decide, there is no such certainty on how the Republican appointees will rule in the case, which will go a long way toward defining the scope and limits of government power in the 21st century.

For the past 70 years, liberal-minded justices have taken more uniform views of how far federal power extends while the lines are much more jumbled when it comes to conservative jurisprudence, court watchers say.

Virtually everyone agrees that the four Democrat-appointed justices will move to uphold the law. Few doubt that Justices Sonya Sotomayor and Elena Kagan, appointed by Mr. Obama, will join Justices Ruth Bader Ginsburg and Stephen G. Breyer, appointed by President Clinton, in upholding as constitutional the mandate that individuals obtain medical insurance and the massive Medicaid expansion.

But among the five other justices, conservative stalwart Clarence Thomas is the only one viewed as a sure vote against the mandate and possibly other parts of the law.

So court watchers are left scratching their heads over Justices Anthony M. Kennedy, Antonin Scalia, Samuel Anthony Alito Jr. and Chief Justice John G. Roberts Jr. While these four are generally regarded as conservatives, conservative jurisprudence isn’t as ideologically predictable on the issues the case raises.

Dr. Michael Newman (right), a Washington internist who supports the Affordable Care Act, is interviewed by C-SPAN in front of the U.S. Supreme Court building in Washington on Monday, March 26, 2012, as the court hears oral arguments on challenges to the law. (Andrew Harnik/The Washington Times)
Dr. Michael Newman (right), a Washington internist who supports the Affordable Care ... more >

“There’s two types of conservatives,” said Russell Wheeler, a court scholar at the Brookings Institution. “There’s the judicial restraint school that says unless the bill is outlandish, we’re not going to second-guess Congress. And there’s this other view that says the court should be an active examiner of what Congress did because Congress will overstep its boundaries.”

Era of deference

At issue in the health care case is whether the Constitution’s grant to Congress of the power to regulate interstate commerce covers what Mr. Obama and his Democratic allies wrote in the Affordable Care Act.

The original language of the Constitution does not seem to grant Congress such an expansive power - a point raised by one of the appeals court judges, who, nevertheless, upheld the law, saying the Supreme Court itself had expanded the document’s purview that far.

The key break came in 1942, in Wickard v. Filburn, where the court said Congress can ban wheat production even if it is grown for private consumption. The court reasoned that someone producing for his own supply was withdrawing himself from the commercial trade of wheat and thereby affected the market. Thus a decision not to engage in commerce was “commerce.”

Conservatives generally made their peace with the decision in the decades that followed, accepting a much more active federal government that grew dramatically in scope through the 1950s and 1960s. By the 1980s, conservatives deferred to Congress, complaining that justices were being too activist and legislating from the bench.

“The default conservative position after the ‘60s and ‘70s was that judges should be more restrained and defer more to the popular, political branches,” said Ilya Shapiro, senior fellow at the Cato Institute.

Narrowing commerce clause

But now, as conservatives call on the court to overturn Mr. Obama’s signature domestic achievement, they want the court not to defer to the popular branches.

The push is being led by a new type of conservative that has emerged in recent years, scholars say. These conservatives emphasize what the Founding Fathers intended when they wrote the Constitution and want the court to interpret the commerce clause as it did before 1942.

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