Final Thoughts on the Affordable Care Act
Barring some new revelation, I think that this will be my last post on the case. So here are some random observations:
1. The leaks coming out of the Court are disturbing. This is not a Jewel Ridge situation (a famous incident where some Justices leaked to the press and got into a public row about who leaked), but it does not bode well for Chief Justice Roberts’ authority. Normally bygones are bygones when it comes to divisive cases, but this time you might think that a couple of the Justices will never have the same level of respect for him again. (Though why this is different from Justice Kennedy’s switch in Casey is unclear to me.)
2. When Congress comes back into session, some reporters should press Senator Leahy on why he just happened to decide, in mid-May, to go to the floor and give a speech focused on Chief Justice Roberts and health care. That was an amazing (cough) coincidence. What did Leahy know, and when did he know it?
3. Moving back to the merits, I must say that I’m not persuaded by the Chief’s Necessary and Proper Clause analysis. If you define the legislative end as “regulating inaction,” then it follows from his Commerce Clause reasoning that the N and P Clause cannot support the mandate. The more logical position, though, is that the end in this case was “providing universal coverage” and that the mandate was a constitutional means of doing that. (I have other problems with that portion of the opinion, but that would beat a dead horse.)
4. In time, I think the principle that will emerge from this case is that a major piece of legislation enacted by one party and subjected to extensive partisan debate should not be invalidated on a party-line vote by the Justices of the other party. I wonder if the opinion would have been stronger if there was a more frank discussion of the political considerations.
UPDATE: Sometimes the wisest decision is not the most coherent one. People love to poke holes in Justice Powell’s opinion in Bakke, but it’s been the law of the land in practice for more the thirty years and has served the nation well. You can say something similar about Marbury and many other “great” cases. In any event, we’ll be arguing about whether Chief Justice Roberts did the right thing from now until doomsday.