Tuesday, July 20, 2010

N.Y. Times editorial on Kagan confirmation

The New York Times today runs this editorial urging Senators on the Judiciary Committee to vote in favor of Elena Kagan's nomination to the Supreme Court. I mention this not for the opinion it expresses (which is rather predictable) but the subject matter on which it focuses: the breadth of Congress's commerce power and the constitutionality of section 1501 of the Affordable Care Act.

I find this noteworthy in two respects. First, who would have thought--even just two or three years ago--that the real "hot button" issue in a Supreme Court nomination would be the Commerce Clause? Not abortion, not gay rights, not the war on terrorism, but the subject students can barely stand as we slog through it in first-year constitutional law, the good ol' Commerce Clause.

Second, the editorial reflects the growing salience of the constitutionality of the ACA--and the breadth of Congress's enumerated powers more generally--as a political issue among the American public. Of course, many things could happen to defuse the matter before it ever reaches the Supreme Court. But at least at this point, the fight over the constitutionality of the ACA seems to have the markings of a sort of constitutional "moment" (to steal Bruce Ackerman's terminology): a point at which the American public becomes highly engaged on a significant issue of constitutional meaning, the resolution of which will have a lasting impact on our constitutional order.

Yet another reason that this whole matter, at least me, is terribly fascinating.