by Jeffrey Toobin, The New Yorker, August 29, 2011
In 1995, the Supreme Court, in an opinion by Chief Justice William H. Rehnquist, did finally strike down another law as violating the Commerce Clause. In United States v. Lopez, the Court rejected a federal law that made it a crime to possess a gun near a school. Rehnquist’s opinion said, in essence, that possession of a gun in or near a school was so completely remote from the national economy that Congress had no right to prohibit it.
Thomas agreed—and then some. In a concurring opinion, he said, “I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence.” Even Rehnquist had acknowledged the long line of cases that said the Commerce Clause was satisfied if the activity in question “substantially affects” interstate commerce. In a characteristically lengthy and detailed opinion, Thomas said that the early New Deal Court—the Nine Old Men—was right, and all the Justices over the following six decades were wrong. Thomas wrote, “From the time of the ratification of the Constitution to the mid 1930’s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause.” By Thomas’s reading, Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional. “Justices can be influential by indicating to lawyers the boundaries of what’s possible,” Eugene Volokh, a professor at U.C.L.A. School of Law and a widely read blogger, said. “There is conventional wisdom about what’s possible, like ‘Whatever you think about the Commerce Clause, no one is going to go back to the pre-1937 approach,’ or ‘The Second Amendment is a closed issue.’ Thomas has shown that sometimes the conventional wisdom is wrong.”
Supreme Court Justices, especially those who are appointed young, like Thomas, can afford to take the long view. On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act. That same day, Kenneth Cuccinelli, the Attorney General of Virginia, filed one of the first of several legal challenges to the law. Earlier this year, sixteen years after Lopez, Judge Roger Vinson, of the Federal District Court in Pensacola, struck down the law in its entirety—and he relied several times on Thomas to do so. (The Eleventh Circuit affirmed Vinson, in part.) Quoting Thomas’s concurring opinion in Lopez, Vinson said that the Obama Administration’s position would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.” These words, of course, would fit just as well in a speech by Ginni Thomas as in an opinion by her husband.
Four more circuit courts of appeals are slated to weigh in on the constitutionality of the health-care law. In due course, the Justices will have their turn. I asked Cuccinelli what role Thomas might play in the resolution of the health-care case. “I don’t like to make predictions,” he told me. “But I know I’ve got his vote.”