Bench Memos

Linda Greenhouse Remains Hopeful on Obamacare

Linda Greenhouse is unquestionably a savvy observer of the Court, so her impression that “Chief Justice Roberts and, to a lesser extent, Justice Kennedy were heading in [the government’s] direction” by the end of the arguments ought to give pause to those opponents of Obamacare who expect to be celebrating a big victory at the end of June. (This provides me another occasion to emphasize that opponents of Obamacare shouldn’t sit back and hope for the Supreme Court to deliver the death blow to Obamacare, but should instead be working now to elect this November a Congress and president that together will repeal and replace Obamacare.)

I will note, though, that Greenhouse is not fair when she asserts that Roberts and Kennedy “seemed particularly alarmed by the categorical position put forward by Michael A. Carvin, the lawyer representing the small-business plaintiffs, who argued that a victory for the government would mean that Congress could ‘regulate every human activity from cradle to grave.’”

Far from adopting this “categorical position,” Carvin in the quoted passage was simply responding to Justice Breyer’s question whether “when you are born, and you don’t have insurance, and you will in fact get sick, and you will in fact impose costs, have you perhaps involuntarily— perhaps simply because you are a human being—entered this particular market, which is a market for health care?” (Transcript at 88.) As Carvin explained, there’s a distinction between the “plenary police power” of the states that Americans are subject to by reason of their presence and Congress’s “very limited commerce power.” I doubt very much that any justice was “alarmed” by Carvin’s compelling (if obvious) point. Indeed, Breyer himself replied, “I see the point.”

I’ll also note that Greenhouse restates her ill-explained opinion that “this is an easy case,” even as she acknowledges the “tough but fair questions from the members of the court who actually seemed to be wrestling with the issues.” I’m not quite sure why she thinks that they might be “wrestling” with the issues if the case is so easy.

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