10 Things to Bear in Mind During the Health Care Arguments

As the hearings begin, keep your eyes on the justices, play drinking games -- and be prepared for anything.


Welcome to America, the land of the free and the home of the brave, on the eve of the big Supreme Court arguments over the Affordable Care Act, where you cannot swing a reply brief without hitting a lawyer or a lobbyist or a medical "expert" willing (for some free publicity) to share with you his or her ponderous view of how it's all going to come out. I have received hundreds upon hundreds of emails pitching such knowledge and prescience-- and one of the best parts about the looming end of this case will be the end of these emails.

The truth is, dear reader, that the people who know how the case is going to turn out aren't talking. And the people who are talking about how the case is going to turn out don't really know. Since the justices alone are in the first group I happily acknowledge that I am squarely in the second group. After Bush v. Gore, after Citizens United a decade later, I have learned on this beat never to be too sure about anything. Instead, all I offer here are a few tips that I believe will help reasonably guide you through the three momentous days ahead. 

Be prepared. If you have somehow managed to avoid the ceaseless legal and political chatter over the Affordable Care Act, both before and after it's enactment almost exactly two years ago today, then congratulations! If you want to get caught up, however, start here, at the official website of the United States Supreme Court, for basic legal briefs and other material. From there, go to Scotusblog's indispensable coverage of the cases, the lawyers, and the issues. Then read this memorably candid piece by Dahlia Lithwick.  

Be prepared for disappointment. The justices will have plenty of many different ways to resolve these cases without giving a complete victory to either side in the fight. For example, the Court could declare that the Care Act contemplates a "tax" and not a "penalty"-- even though it doesn't say so-- and that would mean that the challenges are premature. Can you imagine the political furor if that's the result here? I can. It would mean a whole new generation of lawsuits in two years-- if the statute itself isn't amended or repealed first.

Action/inaction. Opponents of the health care law say that Congress may not constitutionally regulate "inaction"-- the voluntary choice not to buy health insurance. In response, the Obama Administration and other Care Act supporters say there is no such thing as "inaction."  Notably, 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush and a former law clerk to Justice Antonin Scalia, wrote last year that "inaction is action." If the Court agrees with that formulation, the law likely will survive.

Drinking games! If, like hundreds of millions of your fellow citizens, you cannot see the arguments live, then consider having an "audio release" party. Invite your friends over to listen to the justices and lawyers cogitate. And you can play drinking games. For example, everyone can take a shot if someone in court mentions the phrase "broccoli mandate" to connote overreaching federal power. Or, if you are a heavier drinker, you can just take a shot every time someone mentions Wickard v. Filburn, the 1942 case so vital to both sides.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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