What Thursday’s Verdict Will Settle—and What It Won’t
June 27, 2012
The debate over health care reform’s constitutionality will reach its climax on Thursday morning, when the Supreme Court issues its ruling. But the fight over health care will go on, however the justices rule. It’s a fight that progressives should welcome, but one, I suspect, they won’t win if they keep fighting like they have been. Ever since oral arguments, when the conservative justices expressed extreme skepticism of the government’s position, supporters of the Affordable Care Act (including me) have been bracing themselves for the worst.
The Supreme Court’s decision to strike down most of Arizona’s immigration law is a cause for celebration—not least because it’s a model of how the Court can make decisions based on judicial philosophy rather than partisanship. The bipartisan majority opinion by Justice Anthony Kennedy, joined by Chief Justice John Roberts and the three liberal justices (Elena Kagan was recused) was modest and nuanced in tone and in substance—and consistent with all of the justices’ previous expressions of willingness to allow federal policies to trump state ones in cases where they conflict.
Last week, a New York Times/CBS poll found that only 44 percent of Americans approve of the Supreme Court’s job performance and 75 percent say the justices are sometimes influenced by their political views. But although the results of the poll were striking, commentators may have been too quick to suggest a direct link between the two findings.
In Defense of the Constitution: The Battle for Obamacare
June 08, 2012
AT THE END OF MARCH, when Solicitor General Donald Verrilli appeared before the Supreme Court to make the case for the Affordable Care Act, he was widely perceived to have choked. When he approached the podium in the packed courtroom, the stakes could not have been higher. Verrilli was defending the Obama administration’s central domestic achievement, a reform that had consumed the White House for the better part of the president’s first term.
Are Liberals Trying to Intimidate John Roberts?
May 28, 2012
In the current issue of TNR, I suggested that the health care decision represents a “moment of truth” for John Roberts because, if the Supreme Court overturns the Affordable Care Act by a 5-4 vote, Roberts’s "stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.” This observation was intended as nothing more than a statement of the obvious. It has nonetheless provoked an outraged reaction from conservative commentators.
That Elizabeth Warren claimed in the 1990s that she is a Native American is, among other things, a sign that Supreme Court Chief Justice John Roberts had a point. When Roberts famously wrote in a 2006 opinion, “It’s a sordid business, this divvying us up by race,” he was castigated by many liberals for not understanding that Race Matters—that race is at the root of considerable societal injustice, and the country must address the issue squarely.
First Health Care, Now Immigration: How the Government Fumbled Its Latest Supreme Court Case
April 26, 2012
At the conclusion of yesterday’s oral arguments in Arizona v. U.S., the case that will decide the fate of Arizona law SB 1070, Chief Justice John Roberts said, “Thank you, Mr. Clement, General Verrilli.
In the oral arguments over the constitutionality of health care reform, John Roberts and Anthony Kennedy seemed at times to be looking for a reason to uphold the law despite their doubts. Unfortunately, Solicitor General Donald Verrilli didn’t give it to them.
Obamacare Is On Trial. So Is the Supreme Court.
March 29, 2012
Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act. Now something else is at stake, too: The legitimacy of the Supreme Court. Nobody knows how the justices will rule. And nobody can know, not even the justices themselves. On Friday morning, perhaps by the time you read this, they will meet privately to take their first vote. More often than not, this first vote determines the final verdict.
Why the Supreme Court Justices Won’t Be Crudely Political When They Rule on Obamacare
March 29, 2012
In the weeks preceding the Obamacare case, many veteran Supreme Court-watchers could not bring themselves to believe that a majority of the justices would find the individual health insurance mandate unconstitutional.