Yesterday I made a bold prediction that if the Supreme Court struck down portions of ObamaCare as unconstitutional, the Progressives would herald a Constitutional Moment, as if they were facing the Supreme Court in 1936.(See here)
At Balkinization, Mark Tushnet just proved my point.
On the merits of the challenge (to the Constitutionality of the health care bill), I’m skeptical, but I want to raise a point related to earlier postings about constitutional moments. My skepticism is a predictive one, which seems to me quite widely shared. One would be reasonably confident that under constitutional law as articulated by the Supreme Court up to late 2009 the Nebraska Compromise “is” constitutionally permissible. But, of course, there are — there always are — arguments from within existing constitutional law supporting the opposite conclusion. And it’s always within the power of five members of the Supreme Court to adopt what they believe to be the correct interpretation of the Constitution even if that interpretation is different from, or in tension with, the tenor of the rest of constitutional doctrine. I think the way to think about the predictive question is this: We should be thinking about the question, Do five members of the present Supreme Court want to place themselves in the position of the Supreme Court majority as it was in 1935-37? If they do, the ticking of the clock of constitutional moments might get a bit louder.
I hate when it I’m right
The Health Care bill transforms government unlike any other “landmark legislation” since the New Deal. Since the Supreme Court abdicated its Constitutional role in West Coast, the Justices have not been willing to stand up for the encroachment of the feds. Save Justice Thomas, I don’t think any of the 9 have the moxy to stand up to healthcare. So I don’t think Tushnet has much to worry about. But he did issue a shot across the bow at 1 First St NE.