Ever since the United States Supreme Court heard arguments about Obamacare’s constitutionality in late March, speculation has been rife that the Justices will strike down the individual mandate. The predictions rest on a single assertion: That individuals have never before been required, under the authority of the Commerce Clause, to purchase a product or service from a private party. In other words, that there is no precedent for a “purchase mandate.” The assertion is inaccurate.
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog. A version of this piece was originally posted there on April 18, 2010. Supreme Court retirements inevitably produce much more coverage of process than substance. The press is dominated by political rather than legal reporters. Politics is also more familiar and therefore more accessible to the public than are court decisions. The irony is that this attention to process is not very meaningful—at least at this stage, when there is no nominee.
Ramesh Ponnuru unpacks his controversial description of Sotomayor as "Obama's Harriet Miers," explaining: What I'm suggesting is that both nominees were picked because they were women, because they were members of politically valued groups (evangelicals in Miers's case, Hispanics in Sotomayor's), and because they were considered politically reliable by the people who picked them. Neither was picked based on her impressive legal mind, although the pickers in each case doubtless believed that the nominee exceeded some threshold level of competence.