Scalia now seems more skeptical about regulating health care than home-grown marijuana

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Scalia. ()
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To some longtime observers of the Supreme Court, the surprising part of yesterday's oral argument wasn't that Justice Anthony Kennedy critically questioned the individual mandate; it was the harshly skeptical tone from Justice Antonin Scalia.

Scalia, one of the court's most outspoken characters, has long been an originalist villain to those on the left, but there was a distinct strain of thought, at least among some constitutional scholars, that he might be inclined to look favorably upon the Affordable Care Act.

That idea rested primarily on his concurrence in Gonzales v. Raich, a 2005 case out of California, in which the court found that the federal government's power to regulate interstate commerce extended to marijuana that was grown at home solely for personal consumption.

But if Scalia was feeling constrained by the opinion, he didn't show it. The court's longest-serving justice interrupted the struggling solicitor general with the first question—about why the government couldn't regulate insurance "directly"—and he generally led the conservative charge on how the government defines the interstate market and why, if it could mandate health insurance coverage, it couldn't mandate any number of other things. 

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"Could you define the market—everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli," he said at one point.

"To the extent people thought, that based on Raich, and to the extent the questioning is indicative of his views, he had really only skeptical questions of the solicitor general," said Gillian Metzger, a law professor and vice dean at Columbia Law, and former clerk to Justice Ruth Bader Ginsburg.

"And he really did not ask very much at all of the respondents, which would seem to suggest—again, if you rely on the questioning—that he would be in the camp of thinking this is unconstitutional," she said. "That is a change from what people were thinking given his decision in Raich. I think otherwise, the general tenor, in terms of where justices stood, it was all in the range of possibility."

Just how surprised one should be about Scalia's skepticism depends, as with most court-related matters, on how you parse his concurrence in Raich.

Randy Barnett, the libertarian law professor who represented Angel Raich and has aggressively pushed the anti-mandate agenda, wrote a pre-emptive post earlier this month arguing that Scalia's concurrence in that case was hardly controlling here.

Put (too) simply, this view holds that a health care mandate isn't necessary to the regulation of interstate commerce, in the same way that Scalia found the government's ability to police even homemade marijuana was.

Scalia's tone didn't invite the kind of hand-wringing that Kennedy's did, because, unlike Kennedy, he was never seen to be the deciding swing vote. The conventional wisdom was that, if Kennedy voted to uphold, the Scalia who decided Raich might make for a sixth, or perhaps even seventh, vote to affirm the decision.

While that might make little difference to the law's immediate survival, Scalia's opinion has the power to provide something no Kennedy vote ever could: the imprimatur of a bona fide constitutional conservative.

That support would seem to put the mandate on firmer footing for any future challenges, and also give Democratics a powerful antitode to the campaign-season charge that President Obama is riding roughshod over the Constitution.

And it had the power to say something much larger about the court itself: that the justices, even the ones perceived to be most political, are still capable of bucking ideology to decide cases on the merits.

If yesterday was any indication, that hope now rests primarily with Chief Justice John Roberts.