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.
What if you bought a ticket to The Hunger Games and ended up watching Life Cycle of the Soybean?
That may describe the feelings of bemused citizens listening to today’s recorded oral argument on the first of three days of hearings in the case against the Affordable Care Act. Instead of death panels and broccoli patrols, they got to hear a discussion for law nerds about statutory construction and the definition of “tax.”
Here are quotes from an anguished brief filed with the United States Supreme Court: “the present statute . . .departs markedly from any prior statute sustained as an exercise of the commerce power. . . .” It “is incapable of being regarded as within the scope of any of the other statutes or decisions.” Further, “there is no statutory precedent to support the Solicitor General's position in this case.” That position “is founded on a concept of the interstate commerce clause which has never been recognized by the Courts. While the wisdom of legislation is a matter for the Congress it is within the Court's proper prerogative to look with deep concern at an assertion of power never heretofore upheld.”
Seventeen years ago, in Springfield, Oregon, a local mechanic went into a fast-food restaurant, walked up behind a man eating lunch, and shot him to death in the back of the head.
A local grand jury refused to indict the shooter. There had been no altercation, no sign that the man shot was carrying a weapon. But the shooter believed that the victim had threatened his daughter. And the dead man was, in the words of the local district attorney, “a violent man, a drug dealer by trade.”
Maybe the shooter should have left it to the police, the district attorney said, but the victim should also have “moderated his behavior.”
Justice Ruth Bader Ginsburg’s phrase fell into the Supreme Court chamber with an ominous clang, like the sound of metal doors slamming.
Not surprisingly, Kent Holt, an assistant Arkansas attorney general, tried to mute the clang. Speaking of Evan Miller, who committed murder at 14 and is now challenging his sentence of life without parole, Holt said, “I'd respectfully disagree that he's a throwaway person.”
“What hope does he have?” Justice Sonia Sotomayor asked.
Well, Holt responded, he could ask for a commutation of his life-without-parole sentence. He cited a 1979 Arkansas case stating that 30 such requests had been granted in the five years before.