Liberal Senators Worried About their Old Friend Wickard v. Filburn
Last week the Senate Judiciary Committee held a hearing on the role of the Judicial Branch in America. U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer testified, answering the Senators’ questions for over two hours. You can see the entire hearing HERE. The Justices’ testimony and the Senators’ questions continued the trend of positive messages coming from the Court. We have many reasons to be optimistic about our efforts to overturn Wickard.
The questions asked were at least as interesting as the answers. Several liberal Senators asked questions that reflect more than concern, they reflect active fear that the Court is about to make major changes in the way the Federal government does business. They asked about the Court’s respect for “Stare Decisis.” (Stare Decisis is the doctrine of following precedent, or decisions from earlier cases.) This question, and the conversation following, reflected the liberal Senators’ fear that the Court is about to overturn “venerable precedent.” The liberal Senators emphasized the importance of “predictability” in the law. Of course these are the same Senators that gave us the most unsettled, unpredictable period in history by passing Obamacare and threatening to pass laws like Cap & Trade and Card Check. Their sudden concern over “predictability” reflects their concern that the Court is about to take away a great deal of power these Senators have come to believe is their right to possess.
Both Justices answered this question by pointing out that the Supreme Court has full authority to overturn its own precedent, especially when the Court is reviewing the limits placed on Congress by the Constitution. Justice Scalia explained that if the Court doesn’t enforce such limits, the only way to fix the situation is to amend the Constitution, which is very difficult. Scalia went on to explain that if the Court doesn’t tell government when it has gone beyond the Constitution, then the Constitution should be hung in a museum as a historical footnote. Even liberal Justice Breyer agreed that the Court’s job is to protect the boundaries of governmental authority. They both agreed that without active enforcement of the Constitution by the Court, the Constitution becomes “just words on paper.”
Justice Scalia also pointed out to the Senators that the Court “never strikes down a law.” He explained that laws passed by Congress that conflict with the Constitution are not laws at all. He said, “it seems to be a law, but it really isn’t.” Concluding that the Court simply ignores such laws and confirms that Americans can act as if they had never been passed. This may seem like a trivial point, but it is actually very important. Scalia was reminding the Senators that their powers have limits, and that the Court and the People have absolutely zero obligation to recognize authority asserted by Congress when Congress never had that authority in the first place.
The liberal Senators also asked about recusal of Supreme Court Justices that have a conflict of interest on a particular case. You may be aware that many liberals have tried to preemptively make the case that Justice Thomas should recuse himself from any Obamacare cases because his wife lobbied against Obamacare. The liberal Senator’s questions were an attempt to strengthen this effort. They even suggested a rule change to allow retired Justices to return in place of Justices that are recused. Both Justices quickly squashed the Senator’s arguments. Justice Breyer went as far as to argue that Supreme Court Justices have a duty to NOT recuse themselves unless they simply cannot decide the case without personal bias.
Conservative Senator Mike Lee, from Utah, asked the rhetorical question: (I’m paraphrasing) Do members of Congress have a duty to determine if legislation they support is Constitutional, before they vote for it? Or can they simply try to get away with as much as possible under cases like Wickard v. Filburn? Scalia said, Of course members of Congress have a duty to determine Constitutionality the bills they support, BECAUSE they took the same oath as Supreme Court Justices to uphold and defend the Constitution. Breyer agreed. This discussion begins roughly at time stamp 117 minutes.
This is GREAT news! Less than a week ago one of the most liberal Supreme Court Justices AND one of the most conservative Justices both told a bunch of Senators that they have a duty to follow the Constitution. The underlying message being that they have not been doing so. Without saying it directly, they told the Senators that Justice Thomas would not be recused from the upcoming Obamacare case. They told the Senators that the Court can and will overturn “venerable” precedent if the precedent violates the Constitution. And Wickard was specifically mentioned in that discussion.
I’m the first person to acknowledge that this may mean nothing at all. You never know what the Court will do until it does it. However, any honest Court-watchers have to admit that it seems like the Court will take a hard look at Wickard in the very near future. If this wasn’t true, why would venerable old liberal Senators be so worried?
Co-Founder, Lead Counsel
LIBERTY LEGAL FOUNDATION
(Emphasis shown here was in the original report I received.)
We will have to work REALLY hard after the election to contain the present members for the two months they will have left. They will try to burn everything they can before they have to leave. Remember the gutting of the White House when the Clintons left? This is going to be MUCH worse.
THEN, we will have the job of convincing our new ones that they should actually cancel the laws and regulations of the previous thieves.
THEN, we will have the job of convincing our new ones that they should actually cut the budget by cancelling the agencies that are destroying our economy and country.
We aren't going to have the luxury of a breathing spell such as we have taken this past 10 months.
This could be very far-reaching, IF the Supreme Court judges have enough intellectual honesty to abide by the Constitution and dismiss all the "BS" that has been piled up by politicians over the past century.
If they wanted health care to be more affordable, they would get government out of the way and allow people to buy it across state lines. Increase competition.
Samuel Adams once said, "among the natural rights of the colonists are these: first, a right to life, secondly to liberty, thirdly to property; together with the right to defend them in the best manner they can."