April 01, 2013

Advance Sheet: A Conservative by Any Other Name

Despite the outcome, it is hard to view Chief Justice Roberts's reasoning in the healthcare decision as anything other than conservative.

Robert E. Shapiro

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Some years ago, so the story goes, a young Chicago lawyer of exceptional promise received a telephone call from a friend, congratulating the young lawyer on his victory that morning in a case he had pending in the U.S. Supreme Court. Nonplussed at first by the kudos—the decision had gone against him—the young lawyer soon realized what the problem was. “Read the rest of the decision,” he advised his friend. In the first parts of the opinion, the Court’s reasoning had gone squarely the young lawyer’s way, ticking off point after point in his favor just as he had written those points in his brief. Victory seemed at hand. But it was not to be. In a final stroke, the Court suddenly reversed direction. Its initial rulings did not decide the case; one other, mostly unargued, ground doomed the young lawyer’s cause. And so the case was lost.

Something like the bewilderment, not to say annoyance, of this young lawyer in fielding his friend’s congratulatory call must have been felt in more than one state capital on the morning of June 28, 2012, at least if any of the denizens happened to be tuned into CNN News. Newscasters from this venerable media outlet proclaimed loudly that the Supreme Court had gutted the Obamacare legislation by voiding its most controversial provision, the individual mandate. As is now well known, however, a majority of the Court, 5–4, upheld the individual mandate, allowing the legislation, for the most part, to survive. What’s up with that?

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