Comment by gbacon
1 day ago
You’re almost certainly correct. Kagan, Sotomayor, and Jackson would argue this consequentualist line. Thomas, Alito, and Gorsuch could be persuaded by textualist or originalist arguments and are the most likely overturn votes. Kavanaugh was a key man on standing up and defending the so-called PATRIOT Act during the George W. Bush administration, so no way he knocks out this pillar.
ACB talked a strong originalist game during her confirmation but since shown it’s not her core philosophy. Although Roberts appears inclined to rein in the administrative state, he’s aligned chaotic neutral and thinks himself too clever.
Already down 4-3 and having to persuade both Barrett and Roberts to join a ruling overturning parts of Wickard, another Dobbs seems wildly unlikely even though both precedents were poorly reasoned. At best, they agree to some marginal or technical reduction in scope. It seems equally likely that she sides with the four, in which case, what does Roberts do? He may need to make it 6-3 to control who writes the opinion. Such strong numbers would be unfavorable enough on the surface that he might persuade her back to an even more tepid limitation. The concurring opinions that it would induce from Thomas, Alito, and Gorsuch would be entertaining reading, at least.
There's no way Roberts would vote to overturn this given his history of pretending a penalty directly remitted to the IRS for not carrying health insurance was not a tax for the whole ACA fiasco.
But Filburn must needs be overturned. The sovereignty of states depends on it.
Please suggest one, but ideally three, things that you think that overturning Wickard would lead to that would cause K, S & J to vote against doing so?
The federal civil rights act of 1964 is probably a good one. The clean air act is another. Probably others like consumer protection laws, healthcare regulations, safety laws (OSHA), etc. These are all based on the expanded powers from wickard v fillburn. If portions of these were challenged and overturned, I believe those justices would not view that as a good thing.
Isn't OSHA already unconstitutional under current implementation due to competing intelligible principles?
I agree they won't do it, but they absolutely should.