Wilkinson is also the author of a new book, Cosmic Constitutional Theory:Why Americans Are Losing Their Inalienable Right to Self-Governance, which leaves little doubt that he would vote to uphold the Affordable Care Act if he had been appointed Chief Justice of the United States. Although Wilkinson’s position as a sitting federal judge precludes him from outright saying how he believes the health care case should be decided, his book expresses tremendous skepticism about the idea that the law can be struck down:
Conservatives . . . may understandably regard the 2010 health care reform bill as a leviathan crammed with unknown mischiefs, but to invalidate it on originalist grounds will require analysis that had best be better than good. The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy judicial lift. Any decision that is less than bulletproof will be seen as a purely political undertaking, a revival of Lochner‘s freedom of contract theory in originalist guise.
Better to let the democratic process formulate a superior alternative to this most complex of national problems, something the Supreme Court is particularly ill equipped to do.
Wilkinson is hardly alone with his admirable ability to separate his conservative politics from his ability to faithfully apply the Constitution. Judge Jeffrey Sutton, a former law clerk to conservative Justice Antonin Scalia who spent much of his pre-judicial career looking for ways to undermine federal power, nonetheless wrote an opinion rejecting a challenge to the Affordable Care Act. Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from George W. Bush, also upheld the ACA because the case against it “cannot find real support . . . in either the text of the Constitution or Supreme Court precedent.”
So Wilkinson is far from alone among conservatives, and his views are likely to be predictive of a least one of the conservative justices the ACA needs to pick off in order to survive the Supreme Court.
Ultimately, though, there is reason to fear that restrained conservatives like Wilkinson are a dying breed. Almost as soon as the Roberts Court majority proved its willingness to cast aside longstanding understandings of the Constitution in cases like Citizens United, conservative lawmakers began testing the waters to see just how much of the Constitution the new majority is willing to ignore. Leading conservative lawmakers have now claimed that everything from Social Security to Medicare to national child labor laws to national education and anti-poverty programs to food safety laws to federal disaster relief all violate the Constitution. If the Supreme Court does the wrong thing in the health care case, and refuses to follow Wilkinson’s advice, these conservatives will only become more emboldened to challenge the foundations of our democracy.