In 1936, in United States v. Butler, a 6–3 majority of the Supreme Court held unconstitutional the Agricultural Adjustment Act of 1933, a New Deal measure to support farmers devastated by the Depression. The dissent, by Justice Harlan F. Stone, said that the majority’s reasoning was
addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern.
Ancient history? Until recently one would have thought so, of the Butler case and others striking down Franklin Roosevelt’s efforts to deal with the Depression. For in 1937, in NLRB v. Jones & Laughlin, two justices changed their position and the Supreme Court abandoned the attempt to hold the government powerless to act against national economic disaster.
But now those pre-1937 decisions of the Court do not look so dusty. Once again we have headstrong conservative justices on the Supreme Court, eager to impose their vision of governance. In a suit that will reach the Court in a year or two, Republican state attorneys general are challenging the recently enacted health care law as beyond federal power: a claim reminiscent of the rationale of the decisions before 1937.
The justice who set the Court on its radical turn to the right is Antonin Scalia, the subject of Joan Biskupic’s fascinating biography, American Original. For years after his appointment by Ronald Reagan in 1986, Justice Scalia was often a loner, uncompromising in his views and seemingly unconcerned—indeed pugnacious—in his failure to enlist colleagues. Then, in 1991, Justice Clarence Thomas joined the Court, appointed by George H.W. Bush, and he almost unfailingly agreed with Scalia. In 2005 President Bush chose John Roberts as chief justice and Samuel Alito as an associate justice—both far to the right.
Chief Justice Roberts in particular made a profound difference. He came to the Court with the most definite political program of any appointee in generations: enlarge the power of the president, destroy affirmative action, support corporations. There were now four almost-certain votes for conservative outcomes, and Justice Anthony Kennedy often added a fifth. The way was open for decisions like Citizens United v. FEC in January 2010, which ended limits on corporate political spending.1
But Scalia remains the most interesting of the conservatives, the most provocative. He does not hesitate to be sarcastic, even contemptuous, about his colleagues when he disagrees with them. When Justice Sandra Day O’Connor disappointed him in 1989 by not providing the fifth vote to overrule the abortion decision Roe v. Wade, he wrote in dissent that her rationale “cannot be taken seriously.”
When, a few months earlier, the Court upheld the post-Watergate statute allowing the appointment of independent counsels to investigate executive branch wrongdoing, Scalia was the lone dissenter. He saw the…
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