an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
If you haven't already, read Joey Fishkin's post on why "we are headed for a long-term change in the basic social bargain in the United States."
In an essay at the Atlantic, I connect this theme-- the Affordable Care Act as a significant change in the social contract--to the way that federal courts work in American history.
One important function of the federal courts is legitimating and policing government innovations that alter the terms of the social contract. Although they may resist at first, courts eventually ratify the changes and, in the process, set new constitutional ground rules going forward.
We can see this process in the constitutional struggles over the New Deal and the civil rights revolution. The Health Care Case is yet another example. In my essay, I explain why Chief Justice Robert's opinion performs this function: it legitimates and ratifies the new social contract created by universal health care, but with a conservative spin. Mandates on people not otherwise engaged in commerce must use the taxing power, not the commerce power, and conditional federal spending can't leverage withdrawing funding from existing social programs to induce states to accept new social programs.
In this respect, Roberts' opinion is of a piece with the work of the Burger Court: The Burger court ratified the 1960s civil rights revolution and Great Society programs, but with a distinctively conservative gloss that reshaped the meaning of these achievements going forward.
The Health Care Case is, of course, is only one decision. It is the beginning of the story. A great deal will turn on who wins the next several elections, and who gets to staff the federal courts and the Supreme Court. We will only know what changes we have wrought, and what they mean, later on. Posted
by JB [link]