TPM’s David Kurtz and his commenter ML offer what is, in my opinion, a deep thought about the Supreme Court’s (and especially Justice Scalia’s) apparent willingness to give credence to the Commerce Clause attack on the health care law. ML says that the reach of that attitude is much deeper than it might appear at first glance:
If SCOTUS ditches stare decisis here, sure their credibility will take a hit, but more importantly: we, as a polity and individuals, would have no reason to think we could pass any major regulatory legislation (unless, of course, we took the political commitments of the justices as our guide). SCOTUS would be potentially freezing the statutory law in place. What is Congress supposed to do with its time if everything it thought it knew about the law gets chucked out the window? How does it pass legislation? How does it change *existing* legislation? Are only Republican Congresses allowed to pass laws?
Stare decisis and all the reasons we follow precedent command that the mandate passes. … if the mandate is overturned, we’re ruled by men, not laws.
You know, I think if Justice Scalia or Chief Justice Roberts were given an opportunity to legislate ex nihilo rather than ruling on cases based on existing precedent, they would do exactly that. And if they did that, the Supreme Court would become a ruling committee superior to the other two branches of government… and the fundamental basis of our tripartite government would be changed. I, for one, reject the notion that that should be permitted. If the Court seeks to legislate instead of Congress, then it has become a political branch as surely as the two intended political branches, but a political branch in which the polity has no say in the choice of members… and we who thrive on democracy have a serious problem on our hands.