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WASHINGTON, Sept. 26 (UPI) -- Chief Justice John Roberts marks his fifth year on the U.S. Supreme Court Wednesday, and scores of analysts have written or are about to write hundreds of thousands of words about the impact of the man. Roberts, at 50, in 2005 was the youngest chief justice of the United States since John Marshall, who ascended to that office at age 45 in 1801.
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Marshall went on to serve as chief justice for 34 years, and established the Supreme Court and the lower federal courts as the third branch of government, equal to Congress and the president. Whether the affable Roberts or any other future chief justice will have that kind of influence is, of course, very doubtful.
But there is no doubt that Roberts and the three other conservatives on the high court -- Justices Antonin Scalia, Clarence Thomas and Samuel Alito -- have been joined more and more frequently by moderate conservative Justice Anthony Kennedy, and often form an unstoppable five-justice majority on the nine-member court.
The Big Five already have had an impact on the high court's jurisprudence.
In 2007 they upheld the Partial-Birth Abortion Ban Act. Also in 2007, in a Seattle case, they banned the use of race when assigning students to schools to achieve integration. This year, they gutted the Bipartisan Campaign Reform Act, better known as McCain-Feingold, stripping federal restrictions from corporate and union "electioneering communications."
Retiring Justice John Paul Stevens said in dissent, "While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics."
The 5-4 "electioneering" decision also earned the Big Five a public rebuke from President Barack Obama during the State of the Union address in January. The president said the ruling opened "the floodgates for special interests, including foreign corporations, to spend without limit in our elections."
The rebuke left the Big Five steaming.
Meanwhile, the court's four-member liberal bloc, Justices Ruth Bader Ginsburg, Steven Breyer, Sonia Sotomayor and this year Elena Kagan, frequently has been left out in the cold of the minority in the important cases, able to write only in dissent.
Roberts' impact on the high court has been significantly enhanced by the addition of Alito, who succeeded the more moderately conservative Justice Sandra Day O'Connor in 2006, and by Kennedy's list to the right in recent years.
What the narrow conservative juggernaut hasn't dealt with during Roberts' tenure is a landmark case on the commerce clause of the Constitution. But since all of the Big Five are believed to be fierce opponents of expanding the commerce clause powers of Congress -- former U.S. Labor Secretary Robert Reich warned liberals before the chief justice's confirmation by the Senate that "the record suggests that Roberts is likely to place a higher value on property than on community, and is likely to view the commerce clause as hobbling the effective reach of the federal law and regulation" -- an important modern decision on the clause is just a matter of time.
Article I of the Constitution says Congress has the power to "regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes."
For much of U.S. history, the commerce power of Congress was limited to the regulation of the movement of tangible goods across state and national boundaries through roads and rivers. But that power was expanded broadly in 1942's Wickard vs. Filburn, when the Supreme Court ruled, for the first time, the commerce clause allowed the regulation of goods produced and consumed solely within a state.
After Wickard, Congress used the commerce clause for more than 50 years to enact a vast number of laws that had only a slight connection to interstate commerce.
In 1995, however, the Supreme Court unexpectedly reined in the scope of the commerce clause. In a 5-4 vote, the justices struck down the federal Gun-Free School Zones Act of 1990, which forbade anyone from knowingly carrying a firearm in a school zone.
In the majority opinion in U.S. vs. Lopez, then-Chief Justice William Rehnquist said the law was "invalid as beyond Congress' power under the commerce clause."
The "possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have ... a substantial effect on interstate commerce," Rehnquist's opinion said.
Current Justices Kennedy, Scalia and Thomas were part of the 5-4 majority in Lopez.
A second major blow to congressional commerce power came in 2000's U.S. vs. Morrison, when the same five-justice majority struck down provisions of the federal Violence Against Women Act.
A woman who said she had been raped by two other students at Virginia Polytechnic Institute filed suit for damages under the civil provisions of the federal act. But the narrow Rehnquist majority said the civil provisions of the act "cannot be sustained under the commerce clause or section 5 of the 14th Amendment," which allows Congress to use legislation to enforce "the constitutional guarantee that no state shall deprive any person of life, liberty, or property, without due process or deny any person equal protection of the laws."
Again, Kennedy, Scalia and Thomas were part of the 5-4 majority.
The only break in the steady trimming of commerce clause power came in 2005's Gonzalez vs. Raich, but that ruling suited conservative political purposes. A couple of conservatives apologetically joined the four-member liberal bloc to rule 6-3 that Congress had the authority to regulate home-grown quantities of prescribed marijuana under its commerce power.
All this, of course, was before Roberts' time. Is there an important commerce clause case on the horizon that the Big Five might want to sink their teeth into?
How about the 20-state challenge to Obama's healthcare reform law?
A federal judge in Pensacola, Fla., has promised to rule by Oct. 14 on what parts of the challenge can go forward. U.S. District Judge Roger Vinson also has set a schedule for briefings.
The Obama administration contends none of the plaintiffs has standing to bring the challenge, since the provisions of the law the states object to don't even go into effect until 2014 and no one can argue that he or she has suffered an injury before then.
Some provisions of the Affordable Care Act kick in Thursday, six months after the measure was signed into law.
The initial benefits lift lifetime caps on coverage, prevent insurers from considering pre-existing conditions in writing policies for children not covered by their parents' insurance and allows parents to keep their children on their policies through age 26.
The states contend the law violates the commerce clause -- or exceeds the authority granted by the clause -- because it requires private citizens to buy insurance and violates the 10th Amendment -- which says powers not specifically granted to Congress by the Constitution are reserved to the states and the people -- because it requires the states to expand their Medicaid programs.
The News Service of Florida reports Vinson appeared to be more sympathetic to the state arguments.
The states joining in the challenge are Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington.
Virginia has filed its own challenge to the Obama healthcare initiative.
Assuming there is no settlement, whoever loses the 20-state case is expected to appeal to the 11th U.S. Court of Appeals, headquartered in Atlanta and take it from there to the Supreme Court in Washington.
