Monday, April 16, 2012

Is the judicial counterrevolution underway?

It's difficult to believe that Jerry Smith of the 5th Circuit would've been so bold as to call out the President of the United States over a press conference Q&A had the ACA oral arguments at the Supreme Court not put the scent of blood into the water.

Now some other judges are happily anticipating the judicial counterrevolution:
In a concurring opinion today in Hettinga v. United States, Judge Janice Rogers Brown (joined by Judge Sentelle) contends that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations.
Orin Kerr confines himself to tsking that such an op-ed piece was placed in a judicial opinion, but the merits of the position are catnip to the conservatives who have thought for 80 years that the country went wrong in the New Deal and have longed to return America to the Gilded Age.

The ACA opinion(s) will be meaningful for a lot more than whether or not the individual mandate or Obamacare get overturned. The rationale will be the real story. Will the Court contrive some Bush-v.-Gore one-shot rationalization for a nakedly political act? Or will the Court actually establish its decision on case law by overturning, or "distinguishing" so as to effectively overturn, the modern understanding of the Commerce Clause? Are the Randy Barnetts and Janice Rogers Browns the wave of the future?

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