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Charlie Sykes: Sykes Writes

Not An Easy Decision

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The US Supreme Court has set aside 5 1/2 hour for discussion of the constitutionality of Obamacare. The JS editorial writers say this is a no brainer, don't even bother making the arguments, because of course, we think it's constitutional.... but Ann Althouse, a law professor at UW, has a different take on the scheduling.

The argument for upholding the law rests on a facile application of an existing line of precedent: Look quickly and see that this case is another one of those cases and stamp the law constitutional. Characterizing the case as easy is thus part of arguing for upholding the law. That's what Tribe and others have been doing. Many of the lower court cases have, unsurprisingly, taken that route.

The Supreme Court, which controls the precedents, has to choose between that easy course and drawing a line. If it draws that line and takes down the individual mandate — and perhaps the entire health care reform — it will need to inspire our belief in the truly judicial nature of its exertion of power. To set 5 1/2 hours of oral argument is to command a dramatic performance in the Theater of Law. That will help us see the result as the product of genuine legal process.

Now, our belief in the truly judicial nature of its exertion of power is important whether the Court strikes down the law or not. All that has happened so far is that the Court has rejected the presentation of the case as easy. That doesn't mean the Justices are not perceiving the case as easy. It only means they don't want you to see it that way

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