Since FDR’s court packing threat the Commerce Clause interpretation has gone off the deep end. Everyone who has studied law seriously knows that the “modern” expansionist view of the commerce clause started to become interpreted that way not because the court had a legal epiphany, but rather they feared the Democratic Party would pack the court with 18 or so new justices all of whom would be political hacks. These new interpretations that were done under duress took the entire notion of limited government and tossed it out the window. I am glad to see Justice Scalia come to this point of view.
With a Supreme Court decision on the fate of President Obama’s health care law expected in the next two weeks, every wisp of a hint about the justices’ thinking is getting the scrutiny usually reserved for CAT scans.
Justice Antonin Scalia picked the right moment, then, to deliver more than 500 pages of hints, in a book to be published next week. He wrote it with Bryan A. Garner, and it is an overview and summation of the justice’s approach to making sense of statutes and the Constitution.
It is also studded with telling asides and intimations about past and future decisions.
Justice Scalia writes, for instance, that he has little use for a central precedent the Obama administration has cited to justify the health care law under the Constitution’s commerce clause, Wickard v. Filburn.
In that 1942 decision, Justice Scalia writes, the Supreme Court “expanded the Commerce Clause beyond all reason” by ruling that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”
That position is good evidence, particularly when coupled with Justice Scalia’s skeptical questioning at the arguments in the health care case in March, that the administration will not capture his vote.
Justice Scalia’s treatment of the Wickard case had been far more respectful in his judicial writings. In the book’s preface, he explains (referring to himself in the third person) that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here.” Some inconsistencies can be explained by respect for precedent, he writes, others “because wisdom has come late.”
“Worse still,” he writes, he “does not swear that the opinions that he joins or writes in the future will comply with what is written here,” for the first two reasons “or because a judge must remain open to persuasion by counsel.”
Mr. Garner, a prominent lexicographer and authority on usage, also collaborated with Justice Scalia on an earlier book, “Making Your Case: The Art of Persuading Judges.” He said the timing of the new one was happenstance.