When Enough Is Enough by Linda Greenhouse
Readers of this column know that I like to put obscure or overlooked Supreme Court decisions under a microscope to see what they might tell us about what’s really going on at the court. In its majority and dissenting opinions, the Indianapolis case has all the appearance of a proxy war that must be about some bigger issue than these homeowners’ particular plight. The case was argued back on Feb. 20 and the decision was not issued until June 4. That’s a long time to produce a 13-page majority opinion and six-page dissent. The facts were clear and the legal issue straightforward. Something else was going on.
Chief Justice Roberts rarely casts a dissenting vote: this was only his fourth out of 52 decisions issued so far this term, the fewest dissenting votes of any member of the court. And when he does vote in dissent, he doesn’t usually assign himself to write the dissenting opinion. This was only his second one this term. . .
whether the chief justice’s dissent in the latest case is counted as his first or second, the question remains: why did he care so much?
The libertarian scholar Richard Epstein, in an essay he published the other day in a journal of the Hoover Institution at Stanford University, offers an interesting perspective on the higher stakes in this little case. The court missed an opportunity, Professor Epstein writes in “Intellectual Laziness on the Supreme Court,” to harness the Constitution as a bulwark against government “shenanigans” and “business and fiscal madness.” Not only should the court have ruled for the homeowners, he argues, but it should have used the case to scrap the highly deferential “rational basis” as a standard of review for economic regulation.
The only problem, as Professor Epstein acknowledges, is that there is scant evidence that Chief Justice Roberts is on board with the grand libertarian project of turning back the clock to the pre-New Deal era, when the Supreme Court invoked notions of constitutional due process to erect barriers against government regulation of the economy.
http://opinionator.blogs.nytimes.com/2012/06/13/when-enough-is-enough/?hp
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“But every generation or so a case comes along when this court needs to say enough is enough, if the Equal Protection Clause is to retain any force in this context.”
Enough is enough? In the context of the Commerce Clause, of course, that’s the basic argument of the plaintiffs in the health care case. But try to import the chief justice’s “enough is enough” from the one context to the other, to predict the imminent outcome of that case, and the microscope’s lens becomes blurry. . .
No conclusions here. Just another mystery as we wait for the big one.
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