Federalist Society Mourns the One That Got Away

[Scott Graham]

A sense of gloom hung over this week's meeting of the San Francisco chapter of the Federalist Society.

"I think it's appropriate to talk about the five stages of grief," said chapter president David DeGroot, introducing the society's annual U.S. Supreme Court roundup on Monday.

The reason for the angst could be summed up simply: Chief Justice John Roberts' opinion in National Federation of Independent Business v. Sebelius, the Affordable Care Act case.

"This is the first meeting I've been at where somebody other than me is being hung in effigy," said UC-Berkeley law Professor John Yoo, one of the panel presenters.

Yoo and DeGroot were exaggerating, of course. But not by a lot. The disappointment and sense of betrayal among the 150-plus conservative/libertarian lawyers in the room was palpable.

Yoo said his takeaway from the ruling is that "the growth of the welfare state will not stop. There has been no fundamental change in the boundaries." Although a majority of the court did narrow Congress' power under the commerce clause, it unwound that holding by broadening Congress' power to influence behavior via taxes. So while the government may not be able to force people to buy solar panels, for example, it could say, "If you do not buy solar panels we will tax you $10,000 a year until you do," Yoo said.

Yoo's Berkeley colleague, Professor Jesse Choper, said he counted 33 Supreme Court opinions last term with constitutional implications. Excluding 10 that were unanimous or could not be characterized as liberal or conservative, Choper said the court's conservative wing prevailed in 14 and the liberal side won nine.

"I'd say that's fairly good for a liberal minority," said Choper, who describes his own politics as independent.

"I think conservatives lost all the major cases of the term," said Yoo, "which I agree is extraordinary."

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