The arguments don’t matter

An interesting piece in the Post looking at what Constitutional arguments Obama’s team did not make to try and convince the Supreme Court’s conservatives of the constitutionality of the individual mandate.   The basic premise of the article, though, strikes me as flat-out wrong.  Along the line of… if only just the right argument were made, Obama could count on 5+ votes to preserve the ACA.  That’s just not the reality of judicial decision-making (see Bush v. Gore if you have any doubts).  5 or more justices will either recognize that this law falls well within long-standing Constitutional precedent or 5 or more will undertake a fairly dramatic (and egregious) act of extreme judicial activism and overturn the law, despite all the precedent.  Because they want to.  The idea that whether the Solicitor General had brought up some 1790-something law signed by George Washington would actually change the outcome of this strikes me as entirely fanciful thinking.

About Steve Greene
Professor of Political Science at NC State

One Response to The arguments don’t matter

  1. itchy says:

    Well said.

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