Perhaps it was a Tea Party dissent?

Mr. Gillette forcefully takes me to task for suggesting that Justices Scalia, Kennedy, Thomas, and Alito are true conservatives while Judge Posner is not.

Perhaps it would be clearer for me to say this: the four dissenters are ideological Republicans, and Judge Posner is not. That's my supposition, anyway. Most Americans are either Democrats or Republicans, and can't help having a rooting interest for the favored policies of their party. I think the four dissenters root for Republicans, and the four liberals root for Democrats. There's nothing wrong with this; it's just an anthropological fact. My theory is that Judge Posner doesn't really root for Republicans. He's become associated with conservative Republican policies, but I speculate that he didn't come to those position though party allegiance. I suspect he came to them through his grotesque pragmatism. And it's from this pragmatic position that he's criticizing the dissenters, even though he (historically) tends to favor a lot of the same policies as they do.

Mr. Gillette has an obvious rejoinder: What about Chief Justice Roberts? Isn't he a true Republican? Surely he is. So why didn't he stick with the dissenters? I have a theory, but it's the subject of a future post. For now, let it suffice to say that Chief Justice Roberts's opinion does adopt a conservative Republican view of the constitution, it just doesn't go all the way.

That brings me to an insightful post by Professor Mark Graber over at Balkinization, in which he identifies four different Constitutions, three of which are evidenced in the Obamacare opinions:

Justice Ginsburg’s Constitution is the Constitution of New Deal Democrats. Article I gives the federal government the power to resolve any national problem, particularly national problems that individual states cannot resolve on their own. The number of persons without health insurance is a national problem that states cannot resolve on their own. Since the individual mandate and extension of Medicaid are not utterly idiotic solutions (the New Deal standard) to that problem, they are constitutional.

Chief Justice Roberts’s Constitution is the Constitution of the Republican Party. National powers are enumerated and limited. Those limits are enforced by the Supreme Court. The New Deal represents the absolute limit of federal power. No New Deal legislation actually required persons to purchase products available on the interstate market. Therefore, the individual mandate is not a valid exercise of the commerce clause. No New Deal measure ever conditioned so much money on compliance with federal conditions for receiving federal funds. Therefore, the extension of Medicaid is unconstitutional. New Deal decisions, however, plainly stated that any exaction that gets some revenue can be a tax. Therefore, the individual mandate is a constitutional tax. 

The Constitution of the Justices Kennedy, Scalia, Alito, and (particularly) Thomas, is the Constitution of the Tea Party. New Deal decisions such as Wickard v. Filburn survive, if they survive, only on the principle of stare decisis. Such pre-New Deal decisions as United States v. Butler better reflect fundamental constitutional commitments. The federal government has a very limited role in making social welfare policy, so such agencies as the Department of Education are constitutionally suspect. Both the individual mandate and expansion of Medicaid invade fundamental state prerogatives and so should be declared unconstitutional unless clearly sanctioned by text or precedent. Whether states on their own can solve health care problems is not relevant to the constitutional question. 

I don't think Judge Posner would fall into any of these categories (or the missing fourth Constitution—the Progressive Constitution) but perhaps the distinction between the Tea Party Constitution and the Republican Party Constituttion is the true source of the schism between Posner and the four dissenters. In other words, perhaps it wasn't "truly a conservative" dissent at all; perhaps it was a Tea Party dissent.