Putting together the Court’s two most notable recent decisions, the Arizona immigration decision and the Obamacare decision, leads to this unsettling conclusion: there is virtually nothing the states can do on their own, and there is virtually nothing the federal government cannot do. If that is what the Founders intended, I’m a unicorn.
We also now have further confirmation of another unsettling pattern: Republican presidents will offset the nomination of any reliable conservative to the Supreme Court with someone who is not a reliable conservative. Thus we had Reagan appoint Antonin Scalia, but also Sandra Day O’Connor and Anthony Kennedy. (In fairness to Reagan, I should note that the initial appointment for Kennedy’s seat was Robert Bork, whose rejection by the Senate was one of the most consequential acts undertaken by the Senate in my lifetime). Bush Senior appointed Clarence Thomas, but also David S0uter. And Bush Junior appointed Samuel Alito, but also John Roberts. And it should be noted that if Bush Junior had gotten his way, his record would be even worse, since his first choice for Alito’s seat was Harriet Miers. By contrast, no Democratic president has appointed someone who was not a reliable liberal to the Supreme Court since John F. Kennedy nominated Byron White.