The most important rule in constitutional law, the late Justice William Brennan liked to tell his law clerks, is "the rule of five." Five votes out of nine on the high court are all it takes to make constitutional law and change the course of history.
As the ideological makeup of the court has shifted over the years, the "rule of five" has in some eras favored liberal and in others more conservative majorities. In the heyday of the Warren Court, Brennan, a 1956 Eisenhower nominee, rarely had to break a sweat to get five or more votes to advance a broad, or "progressive," interpretation of the court's role in bringing about political or social reforms. Indeed in some of the most memorable of the court's groundbreaking decisions, those governing race relations, Chief Justice Earl Warren sought and obtained unanimous 9-0 decisions.
The more conservative Roberts court, like the Rehnquist court before it, has more often lived on the margin, with 5-4 decisions either limiting or granting free rein to the powers asserted by Congress under its authority in Article I, section 8, "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" and "To make all laws necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States and in any Department or Officer thereof." Though the justices are always capable of surprising us, another important 5-4 decision is expected in late June when the court will most likely issue an opinion on the case that dominated the headlines this week, the constitutional challenge to he Patient Protection and Affordable Care Act of 2010, often called, in decidedly non-legal terms, "Obamacare."
During the three days of hearings this week, the court's liberal block, made up of Democratic appointees Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, appeared to favor arguments supporting the law's constitutionality, while their conservative brethren, Chief Justice John Roberts, and Justices Antonin Scalia and Samuel Alito, all Republican appointees, were, to put it mildly, skeptical. Clarence Thomas, nominated for the high court by President George H.W. Bush in 1991, typically asked no questions during the oral arguments. But Thomas, perhaps the most conservative of all the current justices in interpreting the powers of Congress, is all but certain to come down on the side of declaring the law, or at least the provision requiring persons not otherwise covered to purchase health insurance, unconstitutional. Justice Anthony Kennedy, a 1987 Reagan nominee, is often the swing vote in a 5-4 decisions. Kennedy, however, seemed to share the skepticism of his conservative brethren about the power asserted by Congress in the Affordable Care Act.
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