When the Supreme Court released its ruling upholding the health care reform law, nobody was angrier about it than Justice Ruth Bader Ginsburg.
"Stunningly retrogressive," she fumed.
Justice Ginsburg wrote in a separate opinion that she found it "puzzling" that Chief Justice Roberts wrote an "essay" on the Commerce Clause when he had decided to uphold the health care law under Congress' power to tax.
"Since 1937, our precedent has recognized Congress' large authority to set the Nation's course in the economic and social welfare realm," she wrote. "Why should the Chief Justice strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion."
What happened in 1937? The Supreme Court upheld the Social Security Act and other New Deal legislation after years of rejecting it as unconstitutional. In 1935, for example, the Court threw out the Railroad Retirement Act, which created a compulsory retirement and pension system for railroads and their employees. The justices said "taking the property of one and bestowing it upon another" was a violation of constitutional rights and beyond the powers of Congress to regulate interstate commerce.
Justice Ginsburg thinks Chief Justice Roberts' "rigid" and "crabbed" reading of the Commerce Clause "harks back to the era in which the Court routinely thwarted Congress' efforts to regulate the national economy in the interest of those who labor to sustain it."
She wrote that the Chief Justice's Commerce Clause opinion bears a "disquieting resemblance" to Supreme Court decisions from the early 20th century, when the Court "regularly struck down economic regulation enacted by the peoples' representatives in both the States and the Federal Government." She mentioned, as an example of one of these "long-overruled decisions," Lochner v. New York.
In the 1905 Lochner case, the Supreme Court struck down a New York law that said bakery owners could not require or allow their employees to work more than sixty hours per week. Justice Rufus Wheeler Peckham said the law interfered with the "right of contract between employer and employees," and violated the individual liberty protected by the Due Process Clause of the Fourteenth Amendment.
"I may not know much about law," President Theodore Roosevelt growled when he heard about it, "but I do know one can put the fear of God into judges."
It was the beginning of a hundred years of ever-expanding federal government authority over the economy. The alarmed tone of Justice Ginsburg's opinion in the Affordable Care Act case suggests that Chief Justice John Roberts' interpretation of the Commerce Clause, which he said "is not a general license to regulate an individual from cradle to grave," has set the stage for a new era of limited government.
"It is a reading that should not have staying power," Justice Ginsburg urged. "If history is any guide, today's constriction of the Commerce Clause will not endure."
History sends mixed messages on the endurance of Supreme Court precedents, which guide the justices but do not bind them. Those who wish to reverse a long-standing precedent can point to the 1938 case of Erie Railroad Company v. Tompkins, when the Court overruled a precedent that had stood since 1842. It was "an unconstitutional assumption of powers," the justices wrote, "which no lapse of time or respectable array of opinion should make us hesitate to correct."
Chief Justice Roberts may have done exactly that to the 1937 interpretation of the Commerce Clause.
"The Framers created a Federal Government of limited powers," the Chief Justice wrote, and Congress' power to regulate commerce is limited to the regulation of those "actively engaged in commerce." Justice Ginsburg said this view "finds no home in the text of the Constitution," but Chief Justice Roberts cited the Tenth Amendment. "The powers not delegated to the United States by the Constitution," he quoted, "are reserved to the States respectively, or to the people."
The Tenth Amendment, part of the original Bill of Rights ratified in 1791, was an explicit guarantee that the new federal government would not usurp more power than had been granted to it by the states and the people. It's been ignored by the federal courts for so long that people who still believe in it refer to themselves sardonically as "Tenthers."
Today they can count the Chief Justice of the United States among their number. What Justice Ginsburg called the "constriction" of the Commerce Clause may have cut the beating heart out of the "Living Constitution," the idea that a few phrases in the founding document may be interpreted as needed to expand the powers of the federal government without any limits.
But if Chief Justice Roberts was so intent on limiting federal power, why did he stretch to grasp the thin reed of the taxing power to uphold the Affordable Care Act, an "implausible argument," in the words of the four dissenting justices, that had not been accepted by any lower court?
The answer can be found in the transcript of the Chief Justice's 2005 Senate confirmation hearings.
"The obligation to strike down legislation," Judge Roberts told the Judiciary Committee, is the "gravest and most delicate duty that the Court performs. And the reason is obvious. All judges are acutely aware of the fact that millions and millions of people have voted for you and not one has voted for any of us. That means that you have the responsibility of representing the policy preferences of the people making the determination about when legislation is necessary and appropriate and what form that legislation should take."
This might be called the Doctrine of You Made It, You Lie in It. "The Court does not express any opinion on the wisdom of the Affordable Care Act," the Chief Justice wrote. "Under the Constitution, that judgment is reserved to the people."
On Wednesday the House of Representatives voted 244-185 to repeal the Affordable Care Act, a statement that in the current judgment of the people, the law should go. However, the Obama administration vowed that the president would veto the repeal bill if it passed in the Senate, and businesses struggling in this economy will continue to bear the burden of complying with a law that faces a good chance of major revision or full repeal following the November elections.
Thomas Jefferson warned that "great innovations should not be forced on slender majorities." Health care reform, regarded by liberals as their crowning achievement, may instead turn out to be their epitaph.
Susan Shelley was a Republican candidate for Congress in the 30th District in the June 2012 election. She's the author of "How the First Amendment Came to Protect Topless Dancing," a modern history of the Bill of Rights. Follow her on Twitter @Susan_Shelley and on Facebook.