Socrates said the obligation of judges is to “Hear courteously, Consider seriously, Decide Impartially.” And that appears to be what the United States Supreme Court is doing as it considers a series of related issues raised by numerous challenges to the Patient Protection and Affordable Care Act including one predicated on the Anti-Injunction Act. The Court expanded the time for argument, offering the lawyers for the parties and several lawyers appointed to argue positions that neither party had advanced time to present their positions and answer questions for three days. In the course of those days of argument, the justices asked thoughtful questions probing the basis for each party’s position, the limits to their proposed rules of law, and the grounding for their position in statutory and constitutional law as well as the Court’s past precedent. Anyone watching the argument, or reading the transcript, or listening to the audio tapes would conclude that the issues presented are difficult and that the Court has listened courteously to all viewpoints and is considering seriously its decision. In fact, the process has been a tribute to the Court and seems to me likely to enhance the Court’s status as a revered American institution if the ultimate decision, and any dissent, is written in a manner that conveys impartiality.
Television, radio, newspapers, and the blogosphere are filled with discussion – and the media seems a veritable school for the public about some complex issues. Discussions focus on the connection between the individual mandate and the community-rating provision and the guaranteed-issue provision, federalism and state versus federal powers, the commerce clause, court-watching and speculation about the outcome of the decision, and presidential politics and the impact of any ruling on the election next fall. With so much prognostication going on about the outcome, I will keep my prediction to myself. But I will say that the parties were uniformly represented by capable and articulate advocates, and the Court focused on key points that it will need to consider in reaching its decision. I hope that when any decision – or set of decisions – issues, the justices will use care in their language to avoid any suggestion that disagreements are due to partisan differences, rather than differences in how the justices view the legal issues.