One man now basically holds the fate of the New Deal in his deciding hand: Justice Anthony Kennedy. That's because the one hope court watchers, and the Department of Justice
, had been holding out—judicial consistency from Justice Antonin Scalia—has been dashed
Many analysts have pointed to Scalia's concurrence on the 6-3 Gonzales v. Raich decision, in which Scalia endorsed the broad authority of the federal government to regulate interstate economic activities under the Constitution’s Commerce Clause. With Raich, the court decided that Congress had the authority, under its power to regulate interstate commerce, to prohibit a licensed medical marijuana patient from growing on his or her property, even if that cultivation was legal under state law. The case was decided largely on the precedent of Wickard v. Filburn, a 1942 case in which the court ruled that a farmer's wheat crop fell under federal production quotas, even though much of the crop was consumed on his own farm. That ruling cemented the government's power to regulate interstate commerce.
In his concurrence on Raich, Scalia cited Wickard, and argued:
[...] that “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
In a new book, however, Scalia appears to be ready to make an about face, not even respecting his own, personal stare decisis
, and overturn the Affordable Care Act. In the new book, he:
[...] concedes that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here” in the health care ruling, the Times reports. He notes that while precedent factored into some of them, in other cases it’s “because wisdom has come late.”
So "wisdom" will allow Scalia to reverse his past opinions, just like that. "What's that, I have to reverse every one of my past opinions in order to reach the answer I want on this next case? No problem! In SCOTUS jurisprudence, we call that 'alternate Mondays.'"
Back when Raich was being argued, Adam Cohen in the New York Times argued about the portent for New Deal laws the decision could hold. Writing specifically about Scalia, he seems eerily prescient.
Justice Antonin Scalia, a leading states' rights champions, said he "always used to laugh at Wickard," but he seemed prepared to stick with it. It may be, however, that the justices are quicker to limit Congress's power when it does things they don't like (like gun regulation) than when it does things they do (like drug regulation). They may be waiting for a more congenial case.
Scalia has found his more congenial case in the Affordable Care Act, it seems, leading to the scariest thought of the summer: It's all up to Kennedy now.