John Fabian Witt at Balkinization
A Democratic Party president’s signature legislative victory is imperiled by an aging Supreme Court stocked by Republican appointees. Tricky constitutional law obstacles, including limits on the Congress’s power under the Commerce Clause, threaten to undo a vast federal insurance program designed to solve a pressing social crisis. But then one of the justices identifies an alternative way to rescue the constitutional basis for the legislation: Congress’s tax power, he concludes, offers the basis for upholding the legislation.
The scenario sounds like Chief Justice John Roberts and the Affordable Care Act known as Obamacare, which the Supreme Court upheld yesterday on the basis of the Congress’s taxing power. But it also matches perfectly the story of Justice Louis Brandeis, President Franklin Roosevelt, and the Social Security Act of 1935. And amidst all the coverage of yesterday’s decision, the crucial connection between Roberts and Brandeis has gone missing. Right out of law school, in 1979, the Chief Justice clerked for Henry Friendly, long thought of as one of the greatest judges of the twentieth century, perhaps the greatest federal judge (alongside Learned Hand) never to serve on the Supreme Court. Friendly, in turn, clerked for none other than Louis Brandeis. Brandeis’s broad view of the Congress’s taxing authority is readily apparent in Friendly’s widely respected taxation decisions. And now Brandeis’s influence is apparent in the most important opinion of Chief Justice Roberts’ tenure.