Bork’s Last Supreme Court Citation Was Ginsburg’s Opinion in NFIB v. Sebelius

December 19th, 2012

My eagle-eyed friend Mike Sacks caught this gem:


Here is the full passage from RBG:

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar­ ian state as a credible reason to deny Congress the author­ ity ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”). But see, e.g., post, at 3 (joint opin­ ion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (assert­ ing, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription”).

In many respects, Chief Justice Roberts’s opinion is a fitting tribute to Judge Bork.