People who follow the law will remember this past week for a long time. Here's why.
Now safely ensconced 1,500 or so miles from the crucible of Washington, and having slept not once but twice on it, I'd like to wrap up this extraordinary week in legal history with a few brief thoughts about the just-completed arguments in the Affordable Care Act cases. A lot of people who care about the law, and politics, and health care will remember this week for a very long time, no matter what the United States Supreme Court decides about the federal health care law. And it's funny how even just two days away from the melee has given me a little perspective on what went down.
1. A full season. The thing about Bush v. Gore, which everyone cited this week, is that the justices rendered their ruling almost immediately. The final stay in that case was issued on a Saturday morning. Two days later, on a Monday, the justices heard oral argument. The next night they rendered the decision that gave the election to George W. Bush (a decision, I will add, that resulted in the continuing conservative dominance of the Court today). On the care act, we are going to have wait roughly 90 days for an answer to the big questions. Those next three months seem like they would be more likely to work in favor of the act than against it.
2. Lay off The Donald. Of all the themes of the week, perhaps the most unfortunate was the concept that the care act is going to be struck down because of the performance of the solicitor general of the United States, Donald Verrilli. This is nonsense -- and precisely the sort of horse-race crap that usually sullies political coverage. Verrilli didn't just wake up Monday morning and become an idiot. First, he was facing a hostile court (more hostile, I will again add, than any appellate court yet to hear these care act cases). Second, it just doesn't matter. Oral argument is just the swirl at the top of the sundae in cases like this.
3. The lower courts. One under-reported theme this week was the gulf between all those lower court decisions upholding the act and the reception the statute received from the Court's conservatives. If the law is as patently unconstitutional as some of the justices painted it to be, then why wasn't it routed at the lower court levels? Why did conservative judges like 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush, endorse it? The dozens of lower court judges who considered the law a valid exercise of Congressional power are just as smart as the justices, aren't they? And they are supposed to be following existing precedent, aren't they? It's the Supreme Court that's the outlier here.
4. Fundamentalists. Opponents of the law say it represents a "fundamental" expansion of federal power. Supreme Court Justice Anthony Kennedy wondered Tuesday whether it might represent a "fundamental" change in the relationship between individuals and the government. But if the Court were to strike down the act it would be a fundamental reversal of generations of judicial deference to federal economic legislation. Even if Clement's argument is true, who should make the fundamental change contemplated by the act? Elected representatives? Or unelected judges? It's the very same argument conservatives have been making for years.
5. The Umpire. There has been a lot written and said this week about Chief Justice John Roberts and the fact that the care act cases represent his first real challenge as the putative leader of the Court. It's true. But the idea that the chief justice is going to emerge here as a Court politician is wistful. Chief Justice Roberts is not a deal-maker, or at least hasn't shown himself to be one, despite numerous opportunities to do so. If he saves the act, he will indeed give meaning to his infamous umpire analogy at his confirmation hearing. If he doesn't, it's time we all acknowledged him for what he is: a conservative ideologue.
6. It's Kennedy's World. Compared to the Chief Justice, Justice Kennedy is a virtual Thurgood Marshall. He has consistently voted to narrow the scope of the death penalty and wrote the rulings in Romer v. Evans and Lawrence v. Texas, the two decisions that will form the basis of the inevitable ruling that outlaws bans on same-sex marriage. Does he feel today that this history gives him a little leeway to stick it to liberals with a vote against the health care act? Does he feel like he's already established his progressive (or at least moderate) bona fides? The chief justice has something to prove to progressives. Justice Kennedy doesn't.
7. Smug justice. I admit I lost my temper on Wednesday. The arguments in the Care Act cases may be funny to Justice Antonin Scalia, the bully that he is, but they aren't funny to the single father who will avoid bankruptcy because of the law, or to the millions of others who will benefit from the Medicaid expansion or from the provision that allows young people to stay longer on their parents' health care plans. Justice Scalia gets his health insurance from the government. To him, the care act is just another statute. Fine. Let him be so dispassionate when his conservative fellow travelers ask him to endorse an act of Congress.