‘Embarrass the Future?’ by Linda Greenhouse
Nothing in the Supreme Court arguments in the health care case last week, or in the subsequent commentary, has changed my opinion that this is an easy case. It’s the court that made it look hard.
I don’t mean the torrent of wisecracks at the government lawyers’ expense from Justice Antonin Scalia, who despite his clownish behavior in channeling the Tea Party from the bench is surely smart enough to know the difference between broccoli and health care. Rather, I mean the tough but fair questions from the members of the court who actually seemed to be wrestling with the issues: Justices Anthony M. Kennedy and Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. The Affordable Care Act will be upheld if least one of these justices is satisfied that the briefs, the arguments, and his own judicial perspective provide sufficient answers to the questions.
By the end of the arguments, Chief Justice Roberts and, to a lesser extent, Justice Kennedy were heading in that direction, it seemed to me. While they might have initially seen the government’s defense of the law as a slippery slope, leading from hospital emergency rooms to the vegetable bin, they appeared increasingly concerned by the implications of the plaintiffs’ arguments as well. They 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.”
The chief justice’s responses to Mr. Carvin included such rejoinders as “I don’t think that’s fair” and “I don’t think you’re addressing their main point, which is that they are not creating commerce in health care. It’s already there.” Justice Kennedy, suggesting that “most questions in life are matters of degree” – as opposed to the plaintiffs’ all or nothing position – seemed to endorse the government’s argument that the market for health care has unique features that separate it from the various hypotheticals and analogies buzzing around the courtroom.
http://opinionator.blogs.nytimes.com/2012/04/04/embarrass-the-future/?hp