Writing at The New Republic,
George Washington University law professor Jeffrey Rosen
shares his fears about the growing influence of libertarian
legal ideas on the conservative legal movement. Of particular
concern to Rosen is the connection he sees between the legal
challenge to ObamaCare’s individual mandate and the larger
libertarian project of restoring some of the economic liberties
lost during the New Deal era. Here’s how Rosen describes the stakes
to his left-leaning readership:

This, then, is John Roberts’s moment of truth: In addition to
deciding what kind of chief justice he wants to be, he has to
decide what kind of legal conservatism he wants to embrace. Of
course, if the Roberts Court strikes down health care reform by a
5-4 vote, then the chief justice’s stated goal of presiding over a
less divisive Court will be viewed as an irredeemable failure. But,
by voting to strike down Obamacare, Roberts would also be
abandoning the association of legal conservatism with restraint—and
resurrecting the pre–New Deal era of economic judicial activism
with a vengeance. This is the era that Judge [Janice Rogers] Brown
and Randy Barnett yearn to revive: a time when crusading judges
struck down progressive economic regulations in the name of hotly
conservative economic doctrines that a majority of the country
didn’t favor.

It’s true that many libertarian and conservative legal activists
would like the courts to give economic liberty the same respect
given to other constitutional rights, such as free speech or
privacy, and that such respect would necessarily involve
overturning or at least limiting a number of earlier Supreme Court
rulings. But as
I’ve explained before, the legal challenge to the Patient
Protection and Affordable Care Act has nothing whatsoever to do
with overturning any of those previous rulings. Indeed, one of the
central arguments advanced by the ObamaCare challengers is that the
individual mandate cannot be justified under any existing Supreme
Court precedent, including the notorious New Deal Commerce Clause
case Wickard v. Filburn (1942). In other words, striking
down the individual mandate doesn’t require overturning a single
previous Supreme Court decision. No matter how the health care case
comes out, the Court’s New Deal precedents are going to remain the
law of the land—for better or worse.