Yesterday we returned from a family trip to Disney World. Hadn't been down there since I took my son in the early '90s. Now we took him, his wife and two of my grandsons. I'm afraid I've changed more than the Magic Kingdom. Something in that is humbling.
On the plane down to the Happiest Place on Earth, I wrote this op-ed for the Milwaukee Journal Sentinel. One morning, before trekking the Animal Kingdom, I wrote more about the need - and potential - for a limiting
principle at the Federalist Society's newly launched SCOTUSreport blog where I have been asked to contribute. The point is this. If the limited view of the Commerce power endorsed by the Chief Justice and four other members of the Court
has any meaning, it cannot be so readily undercut by a capacious view
of the taxing authority. The latter needs a limiting principle that the
Chief Justice did not articulate but did suggest.
It is for
this reason that the op-ed in Monday's paper by law professors Vikrim and Akhil Amar
is unpersuasive. I appreciate that it sets forth the conventional
'liberal" view, i.e., that the Chief Justice was somehow "wise" in
deferring to a piece of legislation in which the President had invested
"substantial capital." The authors suggest that he has done something
like Chief Justice Marshall in Marbury v. Madison, asserting the
Court's authority to say what the law is while avoiding a confrontation
with the executive by giving the latter what it wants - for now.
there are two problems with this view. The first is that it is not
clear that Roberts has protected the Court's interest. He was able to
avoid a confrontation only by adopting a view of the taxing power that
threatens to undercut his view of the commerce authority and the
constitutional scheme it reflects.
The second is that Marbury
was decided in 1803 and this is 2012. We are well beyond the time in which
the Court's authority to say what the law is was controversial. Rather
than strike a blow for judicial independence, Roberts - in at least
giving the appearance that he took a dive - undercut it. This was not a
step forward for the Court, it was a step back.
Having said that, I do think it's a step too far to castigate Roberts' as a "liberal." I think he got too cute by half but I don't expect him to suddenly become something that he has never been.
Thank God for that.
Cross posted at Purple Wisconsin.