Dear Walter, Emily, Jack, and Judge Posner:
I have spent much of the last 24 hours trying to determine what, if anything, actually happened to the Commerce Clause yesterday. Some commentators (and Justice Ginsburg’s concurrence) suggest there was a serious realignment of doctrine that happened here. Ginsburg writes that “both the court's commerce and spending clause jurisprudence has been set awry.” Others, like Walter and Judge Posner, believe it was rather a narrow holding. I think I agree with Jack that the chief justice uses this case as a marker to suggest that the Commerce Clause times may be a-changing, which may or may not be true depending on who wins the next election. This might be a good time to point out again that four of the current nine justices will be 80 by the next election. The court we see today will change profoundly in the next few years.
I would say the same thing about all the whispering over whether the dissent was really a dissent or a majority opinion that lost its way. It depends on what you want to believe that matters. We don’t know. We may not know for years. I might even say the same thing about the many articles celebrating John Roberts as the new John Marshall and the articles condemning him as a traitor. A day later, the ACA decision reads more like a Rorschach test than a clear statement of law. Ultimately, the early reaction to National Federation of Independent Business v. Sebelius seems to say more about what the rest of us want to think and believe about the court than about the opinion itself. I’d hazard that nobody is happier than Chief Justice John Roberts that Tom Cruise and Katie Holmes have chased him off the front pages already.
I want to echo Walter in thanking all of you for sharing your thoughts and reflections with Slate’s readers this week. It’s been a privilege and a joy to end the 2011 term with you all.