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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, May 23, 2012 ::
    "Mr. Chief Justice and may it please the Court: boogie woogie woogie. I see my time is up."

    My colleague Jay Sekulow will be on Fox today at 1:15 discussing the threat strategy some believe is currently being deployed against Chief Justice Roberts in regard to the Obamacare cases. The facts have been piling up for a while; the take-off point for the discussion is a column in The Washington Post by Kathleen Parker.

    Now, Parker, said to be a conservative, has not always been my favorite: when she was produced in evidence against Sarah Palin in the 2008 campaign as a "leading conservative," I had never heard of her, and I flatter myself that I am at least moderately informed of who's who in the conservative world -- leading me to suspect that the fastest way to be labeled a "leading conservative" by the MSM is to (1) call oneself a conservative, and then (2) attack a conservative icon at a crucial moment. But all is forgiven today.

    Now, the campaign against the Chief that Parker describes is tosh on several levels. For one things, it is entirely possible to find Obamacare unconstitutional without disturbing precedents such as Jones & Laughlin or Wickard. I myself think Wickard should be overruled at the earliest opportunity, and Jones & Laughlin, Darby, and the rest should be given the squint-eye. But just as Wickard was a Bridge Too Far even after other New Deal precedents, since it added the "aggregation" principle to the "substantial effects" principle, so upholding Obamacare would be yet another Bridge Too Far, as it would allow regulation of economic inactivity under the Commerce Clause, a step even Wickard did not take. Roberts and the entire Court know all this (though some Justices will be happy to take that step).

    But those mounting the threat campaign against the Chief seem to think their real power lies in their power to shape his historical reputation. Thus, they are banking on: (1) his insecurity. But he does not seem to me to have any, and certainly does not have a basis for any. He's lost The New Yorker? Ooo! Scareeeee! Which brings us to: (2) Their own power. Yep: Jeffrey Rosen will write all the history books. Yes, he and his ilk will write some; so will Randy Barnett, Jon Adler, and a host of others. Historical reputation among Justices is variable. Justice Frankfurter used to be beau ideal of a Justice, but much of his jurisprudence bears a close resemblance to Justice Scalia's: praising him would distract from the project of making Scalia seem an isolated crank, so, into eclipse he goes. Meanwhile, facts have caught up to Justice Douglas: once the social justice crusader so fearless not even law could get in his way, now he's "Wild Bill." Writing decisions with an eye on the history books is a mug's game. (Oh, sorry, Justice Kennedy - nothing personal.)

    :: David M. Wagner 11:30 AM [+] ::

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