What's At Stake
From
Talking Points Memo (TPM) (emphasis added):
A potential Mitt Romney presidency carries huge implications for the
Supreme Court that have conservatives excited and progressives fearful
about the future. ...
Replacing even one of the liberal justices with a conservative, legal
scholars and advocates across the ideological spectrum agree, would
position conservatives to scale back the social safety net and abortion
rights in the near term. ...
Roger Pilon, director of the libertarian Cato Institute’s Center for
Constitutional Studies and a member of the Federalist Society, told TPM
that one more solid conservative vote would pave the way for
“fundamental shifts on the Court” toward “a revival of greater
protection for economic liberty and a direct assault on the modern
regulatory state.”
“If Romney were to appoint [conservative] justices and lower court
judges, then we would see greater protection for economic liberty and
greater scrutiny for regulation — whether they be environmental
regulations, regulations for property rights, regulations for
affirmative action, regulations of all sorts,” Pilon said. “That to my
mind would be a return to the Constitution as it was originally
understood prior to the New Deal constitutional revolution. And that is
basically what the Tea Party movement has called for.”
The implication is that the Court would likely “chip away” at
Congress’ power to compel states to participate in programs like
Medicaid, and at the federal government’s power to erect national
programs like Medicare and Social Security, Pilon says. “I expect that a
Romney-appointed court would be more sympathetic to efforts to change
the Medicare and Medicaid [and Social Security] programs because they’d
come from that school of thought that says government has limited
power.” ...
Randy Barnett, a constitutional law professor at Georgetown University
and a leading architect of the legal challenge to the Affordable Care
Act, told TPM that attacking the legal premise of Medicare and Social
Security (which rest on the Constitution’s rarely questioned powers to
tax and spend) would be “a much longer-term project.” ...
Cato’s Pilon believes that replacing one liberal justice with a
conservative could pave the way for a slow return to the Lochner Era — a
pre-New Deal period when the Supreme Court invalidated minimum wage and
child labor laws as unconstitutional. ...
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