Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.com. His book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.
This is the first of a series of posts looking at the arguments in the upcoming health-care case.
Judges, whatever they like to pretend, rarely decide cases on logical application of argument and case law. They do think about those things, but usually only after they’ve made up their minds—and they tend to make up their minds based on unformed emotional reactions to the questions raised by a case.
So it’s worth asking about the emotional subtext in the minimum coverage (or “individual mandate”) aspect of the Affordable Care Act case, which will be argued in late March. This is the one issue that has stirred public fear—Cheese it, it’s the Broccoli cops!—and Justices are members of the public.
In the time and place where I grew up, as I have written before, Federal judges were figures of awe. They were men (all men) of rather severe probity, following unpopular mandates from the Supreme Court even when those decisions cost them friends and put their lives in danger. I never recall a public complaint from any of the judges in the Southern state where I grew up, and certainly never outright ridicule of the President and the Congress—at least where others might overhear.
Let’s play make-believe (sorry, lawyers call it “counterfactual”) with Justice Stephen J. Breyer. Imagine that Edward Teach, known as Blackbeard, had incorporated his buccaneering business as Pirates, Inc. Now Blackbeard is captured.
And sued. “Do you think in the 18th century if they'd brought Pirates, Incorporated [to court], and we get all their gold, and Blackbeard gets up and he says, oh, it isn't me; it's the corporation—do you think that they would have then said: Oh, I see, it's a corporation. Good-bye. Go home[?]”
Affirmative Action: Perhaps the defining characteristic of the Rehnquist Court was a certain last-minute reticence. On issue after issue—the Commerce Power, abortion, even the long-standing conservative desire to do away with Miranda v. Arizona—the Court would walk up to the edge of the abyss, dangle its toes over the side, and then step (slightly) back. While moving the law far to the right, the Court seldom engaged in the kind of radical overruling that would have perhaps called its legitimacy into question.