Today columnist Linda Greenhouse wrote in the New York Times that she is hopeful that due to Chief Justice Roberts' concern with his legacy and his past voting record, he will probably vote to uphold the health care bill just passed. http://opinionator.blogs.nytimes.com/2010/03/25/which-side-of-history/?hp#preview
I can only hope her prediction comes true..
The judgment of history may motivate some people, but as a great constitutional law professor of mine (David Adamany) taught, the court is a 'delegitimating' institution. In other words, it represents an echo of past elections but not the current state of what the democratic electorate has voted for. So that throughout history, the Supreme Court has often blocked the changes demanded by the electorate. The New Deal was just one. We could be entering another such era..
The idea that Supreme Court justices follow strict jurisprudence and legal precedent to reach their decisions is the kind of hokum they pronounce at confirmation hearings. Even the overrated Rehnquist's voting record is best predicted by looking at the parties: if it's a private business v. the government, the business wins; if it's a public interest group v. anyone, anyone wins; if it's an individual against the government (e.g., a criminal defendant or a personal injury plaintiff), the government wins. I was involved in a case in 1980: Schaumberg v. CBE, 444 U.S. 620 (1980) in which Rehnquist was the sole dissenter because we were a public interest group. He was the only judge who voted against us not only in the Supreme Court but in the northern district of Illinois and the Seventh Circuit Court of Appeals..
He was result oriented and the current crew of Justices are the same. So just as an earlier group wanted to stop the vote counting in Florida in 2000, jurisprudence notwithstanding, they cloaked their decision in legalistic hash. So now the majority can reach the result they want and then justify it with arcane references to originalism or the meaning of the word in 1789, or the 10th Amendment. If the Chief Justice wants to strike down health care, he will find a way..
To twist President Clinton's phrase, \"It's the politics, stupid!\" The Court has always been a political animal--but one that was never elected..