Does Scalia’s New Book Reveal His Vote on the Individual Mandate?

With fevered anticipation of the Court’s most-awaited ruling in years, pundits and scribes are searching for clues as to how the Court will rule.  Previewing Justice Scalia’s forthcoming book, Reading Law: The Interpretation of Legal Texts (co-authored with Bryan Garner), Adam Liptak reports on a few passages that could suggest how Scalia is likely to rule.

Justice Scalia writes, for instance, that he has little use for a central precedent the Obama administration has cited to justify the health care law under the Constitution’s commerce clause, Wickard v. Filburn.

In that 1942 decision, Justice Scalia writes, the Supreme Court “expanded the Commerce Clause beyond all reason” by ruling that “a farmer’s cultivation of wheat for his own consumption affected interstate commerce and thus could be regulated under the Commerce Clause.”

That position is good evidence, particularly when coupled with Justice Scalia’s skeptical questioning at the arguments in the health care case in March, that the administration will not capture his vote.

Justice Scalia’s treatment of the Wickard case had been far more respectful in his judicial writings. In the book’s preface, he explains (referring to himself in the third person) that he “knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here.” Some inconsistencies can be explained by respect for precedent, he writes, others “because wisdom has come late.”

“Worse still,” he writes, he “does not swear that the opinions that he joins or writes in the future will comply with what is written here,” for the first two reasons “or because a judge must remain open to persuasion by counsel.”

Whatever these passages reveal, it’s unlikely they were written with the individual mandate litigation in mind.  Scalia and Garner have been working on the book for some time, the book was originally slated for release last year.  Nonetheless, if Justice Scalia has second thoughts about Wickard that’s certainly good news.