Three Days Of Hearings Yield Five Take-Aways

Daily News Article   —   Posted on March 29, 2012

(by Louise Radnofsky, The Wall Street Journal, – It is notoriously hard to predict how the Supreme Court will rule on a case based on justices’ questioning of attorneys. But with this week’s health-care arguments having wrapped up, here is what we know:

The Court Won’t Wait

The centerpiece of the case is the health-care law’s requirement that individuals purchase insurance or pay a penalty [the individual mandate], but the requirement doesn’t begin until 2014. The justices showed little sympathy in Monday’s arguments for the suggestion that they must apply a 19th-century law that requires people to pay taxes before they can challenge them in court. Chief Justice John Roberts noted that the court ruled in a 1937 case that the government could waive its rights to delay cases.

Government Bore the Brunt

Over more than six hours of arguments, many of the justices gave the government a hard time on multiple fronts. On Tuesday, Justice Anthony Kennedy suggested government faced a “heavy burden” in defending the constitutionality of a federal mandate to purchase insurance. Wednesday afternoon, the justices seemed receptive to a challenge that the law’s expansion of the federal-state Medicaid program is unconstitutional. Those could just be provocative questions designed to sharpen arguments, and an Obama administration official said Tuesday that Justice Kennedy was the most difficult justice to interpret based on his questions. But Randy Barnett, a Georgetown University law professor who is helping the challengers, said that after hearing the questions, he thought “no one would be surprised” if all or some of the law fell.

Watch the Swing Vote…

Remarks from Justices Antonin Scalia and Samuel Alito all but ruled out the chance they would vote to uphold the law. Justice Clarence Thomas, who didn’t speak, was considered solidly against upholding the law even before the start of the hearings. If the law stands, it will be because Justice Kennedy – nearly always the court’s deciding vote—joins the court’s four liberals. By day three, supporters of the law were tailoring their campaign accordingly: “Hey, hey, Justice Kennedy, health care helps my family!” they chanted outside the court.

…And Possible Wild Card

Chief Justice John Roberts, as it turns out, could go either way. He asked questions that at times suggest he is sympathetic to the challengers, and at others, to the government. On Tuesday, he appeared to agree with the government’s argument that everyone is in the health-care market, allowing the government to claim the power to regulate it. But he also said that if the court approved of the so-called individual mandate, “all bets are off” on what the government could do in the future.

It’s All About the Mandate

The 11th U.S. Circuit Court of Appeals is the only appellate court to have struck down the mandate, and even then, it overruled a lower-court decision to say that none of the rest of the law should be invalidated too. But the nine justices devoted a lot of attention Wednesday morning to how closely entwined the mandate might be with the other provisions in the voluminous law. The chief justice indicated at one point that he thought those provisions had nothing to do with the mandate. But he also later suggested those provisions were included as sweeteners to get votes to pass the bill—and that, as a result, they should go too.

Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved. Reprinted here for educational purposes only. Visit the website at


NOTE TO STUDENTS:  This Supreme Court case might not seem very interesting to you, but its outcome will have a huge impact on your future.  Try to gain a general understanding of the case, and the role of judges, etc.  (Read the “Background” below before answering the questions.  If you haven’t done so, read the previous articles on this case, including all “Background” and “Resource” information at: and

1.  What is the individual mandate?

2.  What argument made by those challenging the health care law did justices appear to be favorably inclined to agree with?

3.  Consider the following:

  • A judge is either a constitutionalist or an activist judge.
  • Judicial activism is “the act of replacing an impartial interpretation of existing law with the judge’s personal feelings about what the law should be” (
  • A judge who is a constitutionalist does not make his court rulings based on his personal philosophies, but rather on what the constitution says.
  • Constitutionalism is the belief that a judge’s proper role is as neutral interpreter of established law, not as pioneer of new law or social policy through judicial activism. As former Sen. Sam Ervin said: “A judicial activist is a judge who interprets the Constitution to mean what it would have said if he, instead of the Founding Fathers, had written it.” The constitutionalist philosophy…was the jurisprudential norm in American history, but has eroded substantially in recent decades.
  • The justices nominated by Republican presidents are referred to by the media as conservatives:  more specifically, these judges are constitutionalists.  The justices nominated by Democratic presidents are referred to by the media as liberals:  more specifically, these judges are activist judges.

There are four “liberal” and four “conservative” justices on the court.  Which justice, labeled a “conservative” is usually the deciding vote, sometimes taking the constitutionalist side, sometimes taking the activist side?

4.  How is Chief Justice John Roberts likely to decide on the health care law?

5.  Which U.S. Court of Appeals is the only appellate court to have struck down the individual mandate?

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On the Role of Judges
Judges are like umpires in baseball or referees in football or basketball. Their role is to see that the rules of court procedures are followed by both sides. Like the ump, they call ’em as they see ’em, according to the facts and law-without regard to which side is popular (no home field advantage), without regard to who is “favored,” without regard for what the spectators want, and without regard to whether the judge agrees with the law. (from the American Bar Asociation)

“The role of a judge is to be a neutral interpreter of already established law, not legislator of new law or social policy.  A judge can have his or her own opinions, even strong ones, and still read the law neutrally.  Fundamentally, judges are expected to not bring their personal politics and philosophies to the bench. Judges are expected to read the law in its clear intent and apply it without regard to result. Changing the law should be left to the people and their legislators.”  Sean Rushton, Committee for Justice Executive Director, from the

“One of the big confusions in the…Senate fight over the confirmation of judicial nominees is that this is an issue about ‘liberal’ judges versus ‘conservative’ judges.  The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law [constitutionalist judges do this] or on the basis of the particular judge’s own philosophy [activist judges do this]…Liberals have rooted for judicial activism because this activism has favored liberal causes and liberal views on such issues as abortion, the death penalty, gay marriage, and racial quotas.  But activism can be used by any judge for any purpose.” Thomas Sowell, Hoover Institution