Jeffrey Toobin on Judge Hudson's ruling against the individual mandate:
Personally, I found Hudson’s opinion unpersuasive. His invocations of Comstock were particularly misleading, in my view. But I found Hudson’s use of Comstock illustrative of a larger point. Judges, to a great extent, can do what they want. They can manipulate precedents to reach the conclusions they want to reach. In high-profile cases, the decisions are more about politics than law. If Hudson can cite Comstock for precisely the opposite of what that decision was clearly intended to do, all bets are off. The fate of health-care reform will rest not with the skill of the lawyers who will argue it—or in the words of the cases on which they will rely—but on the preferences of the nine Justices who will decide the case.
I was a bit strong in yesterday's post, so let me rephrase it: On minor issues, the Supreme Court is more likely to rely on arguments and precedent in making its judgment. But on major issues, like the Affordable Care Act, arguments, precedent, and the Constitution are nearly irrelevant; the main factor -- as Toobin writes -- are "the preferences of the nine Justices who will decide the case." The Constitution is incredibly flexible, even for so-called originalists, and each side will find a way to read the Constitution and precedent as to favor their preferred outcome.
Again, to repeat myself, public discussions about the Supreme Court would be much better off if we all just dispensed with the fantasy that the Constitution is central in the Court's decisions.
-- Jamelle Bouie
