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"Constitutional Moments"

Five times in U.S. history the Supreme Court has eaten its wheaties and said that in the future the law will in a major way be very different--or, rather, that Americans before, including the Supreme Court, had been in error about what the law truly was and had been doing it wrong.

Call the first Marbury vs. Madison: the Supreme Court's 1803 assertion of the power that it was going to be the final arbiter--that its decisions about what the Constitution meant would be the ones that stuck. It could have gone another way…

Call the second Lochner: the Supreme Court's 1905 assertion that a late eighteenth-century Constitution enacted an early-twentieth century conception that your key liberty interest is the freedom to make whatever contracts you want to make without let or hindrance from the federal government.

Call the third the Switch-in-Time-that-Saved-Nine: the Supreme Court's 1937 assertion that Lochner was in error, and that Congress's power to regulate interstate commerce was a trump that gave it the right to regulate everything.

The fourth and the fifth are Warren Court actions: (a) in 1954 that legal racial apartheid will no longer be part of America, and (b) in 1966 that the poor will have at least some of the privileges in their interactions--both criminal and civil--with the law that the rich have always had.

You can add others: Dred Scott in 1857 as an attempt to turn the entire United States into a slave country, Roe v. Wade in 1973, the forthcoming overturning of the DOMA. The key is that the Supreme Court moves as a political (and moral) entity--and not as a judicial entity developing and extending precedent in an arena of laws set by common-law history and legislation. And, of course, the odd thing is that since Marbury vs. Madison (1803) there is precedent that the Supreme Court can do this.

In all previous Constitutional Moments, the stakes were political, but the stakes were also large, and the stakes were fundamental: about what kind of country we were going to be. Marbury vs. Madison was about whether the Supreme Court was going to be another anti-majoritarian brake on the powers of legislative majorities that were possibly transient. Lochner was about whether freedom of contract--or freedom to exploit--was going to be a core right. SiT was whether social democracy would come smoothly or would require an economic-regulation constitutional amendment, et cetera.

The interesting thing about the Constitutional Moment that now perhaps looms is that it is the first one in which the stakes are purely partisan, and purely political. The probable Supreme Court majorities in the ACA case have shown no inclination to restrict congressional power when it is a matter of exceeding black-letter patent clause authority to provide a payoff to Disney or to prohibit the medical use of marijuana--and will show no inclination to revisit and change those decisions in the future.

Bob Drummond:

The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years.

Only eight of them predicted the court would do so.

“The precedent makes this a very easy case,” said Christina Whitman, a University of Michigan law professor. “But the oral argument indicated that the more conservative justices are striving to find a way to strike down the mandate.”…

Five of the 21 professors who responded, including Whitman, said the court is likely to strike down the coverage requirement. Underscoring the high stakes and complexity of the debate, eight described the outcome as a toss-up.

During arguments in March, four justices appointed by Republican presidents questioned Congress’s constitutional power to enact the mandate, including Chief Justice John Roberts and Justice Anthony Kennedy, who had been viewed as potential swing votes. A fifth, Justice Clarence Thomas, rarely speaks during courtroom sessions. Questioning by four Democratic appointees was more sympathetic to the provision, a centerpiece of President Barack Obama’s health-care law.

“There was certainly a lot of hostile questioning by the more conservative members of the court,” said Jesse Choper, a law professor at the University of California at Berkeley who described the court as likely to support the mandate. “It’s relatively straightforward -- if they adhere to existing doctrine, it seemed to me they’re likely to uphold it.”

There was broad agreement that the ruling, barely four months before November’s presidential election, has the potential to hurt the Supreme Court’s reputation as an impartial institution.

Eighteen of the 21 professors said the court’s credibility will be damaged if the insurance requirement -- which passed Congress without a single Republican vote -- is ruled unconstitutional by a 5-4 majority of justices appointed by Republican presidents….

Nine of the law professors said if the coverage mandate is invalidated the justices are likely or very likely to throw out several related provisions, such as requiring insurance companies to offer policies without regard to pre-existing medical conditions. Five respondents said the justices will leave those provisions in place; seven called it a toss-up.

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