United States Supreme Court
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.
Harold Pollack is the Helen Ross Professor of Social Service Administration at the University of Chicago and a Special Correspondent for The Treatment. A famous political science article describes the legislative battle over a 1956 House bill, HR7535. The bill would have provided federal aid to the states to build schools. Democrats sponsored the bill, which was popular ten years into the baby boom. For familiar pre-election reasons, Republicans wanted HR7535 to die.
Also on TNR.com today: E.J. Graff suggests that Democrats who fear the political fallout of the gay marriage ruling are wrong-headed--from both an ethical and an electoral standpoint. "Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president," the Obama campaign stated oh-so-carefully in response to this week's California Supreme Court decision striking down the state's ban on gay marriage.
Almost as soon as the United States Supreme Court agreed to hear Bush v. Palm Beach, the questions the justices framed already seemed tangential. The Court had intervened at a moment of great anxiety for George W. Bush. The Florida Supreme Court had just ordered the Republican secretary of state, Katherine Harris, to accept hand recounts--and it appeared that those recounts might allow Al Gore to take the lead.
It is January 5, 2001. The state of Florida has submitted two slates of electors to Congress, one for George W. Bush and one for Al Gore. To decide which to accept, Congress has appointed an electoral commission, composed of five senators, five representatives, and five Supreme Court justices. The commission is divided evenly along party lines, and the fate of the nation hangs on the mystical deliberations of the only undecided member, Justice Sandra Day O'Connor.
By nominating Stephen Breyer to the Supreme Court, the Democrats have, however reluctantly or inadvertently, weaned themselves from Warrenism at last. Over the past four decades, as the excesses of the Warren Court provoked the equally ideological excesses of the Rehnquist Court, liberals and conservatives have accused each other of politicizing the judiciary.
The Founding Fathers, who met in the summer of 1787 to draw up a Constitution for the United States, gave relatively little attention to the judiciary. Clearly they had only a hazy notion of the vital role the judiciary was to play in umpiring the federal system or in limiting the powers of government. Article III of the Constitution says nothing whatever about the qualifications of judges, or about the mechanics of choice. Indeed it says practically nothing about the mechanics of the judicial system itself.