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Why the Mandate Is Constitutional: The Real Argument

Ronald Dworkin | 10 May 2012 | New York Review of Books

Saul Loeb/AP Photos | President Barack Obama greeting Supreme Court Justices Anthony Kennedy and Ruth Bader Ginsburg before his State of the Union address, Washington, D.C., January 24, 2012
The Supreme Court’s hearings in the health care case, US Department of Health and Human Services v. Florida, over a nearly unprecedented three days of oral argument in late March, generated all the attention, passion, theater, and constant media and editorial coverage of a national election or a Super Bowl. Nothing in our history has more dramatically illustrated the unique role of courtroom drama in American government and politics as well as entertainment.

The plaintiffs have asked the Court to declare the Affordable Care Act unconstitutional. The political and social stakes are enormous. But the legal issues, most analysts think, are not really controversial: the Constitution’s text, the Supreme Court’s own precedents, and basic constitutional principle seem obviously to require upholding the act. Analysts at first predicted a 7-2 decision rejecting the challenge. But they apparently misjudged the dedication of the ultraconservative justices, whose questions in the oral argument have now convinced many commentators that on the contrary, in spite of text, precedent, and principle, the Court will declare the act unconstitutional in June, by a 5-4 vote. That prediction may be too swift. There is still reason to hope, as I discuss later, that Justice Anthony Kennedy, often the swing vote between liberals and ultraconservatives, will have sufficient respect for congressional authority to save the act.…read more

“Our recent history is marred by a number of very badly reasoned Supreme Court decisions that, deliberately or not, had a distinct partisan flavor: Citizens United, for example, which, most critics agree, has already had a profound and destructive impact on our democratic process. These decisions soiled the Supreme Court’s reputation and they harmed the nation. We must hope, though perhaps against the evidence, that the Court will not now add to that unfortunate list.”


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