HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Sunday, June 24, 2012

George Bush Laughs Last?

The post-mortems already have begun, and as usual, they overdetermine the surprising success of the constitutional challenge to the individual mandate to purchase health insurance. If the Supreme Court actually strikes the mandate down, observers will continue to claim that the critics framed the debate effectively, that the Solicitor General defended the mandate ineffectively, that Congress and the Obama Administration were too slow to perceive the threat, etc.

But all we really need to know is that George Bush, rather than Al Gore or John Kerry, nominated Sandra Day O'Connor's replacement to the Supreme Court. That difference in the Court's ideology explains far more than anything else. Indeed, as the Court's decision last week in Knox illustrated, the justices can readily draw on their philosophical biases without any help to reach their decisions. In that case, as the four moderate justices pointed out, the conservative wing of the Court announced a new principle about the first amendment rights of non-union members without hearing arguments on the particular matter. Contrary to the Court's standard rules, the majority simply decided to establish a new doctrine without giving the parties a chance to weigh in. There was no need for conservative law professors, television hosts, newspaper columnists or elected officials to beat the drums on behalf of management.

If the individual mandate goes down, its viability was determined not in the past couple of years but in 2006 when George Bush appointed Samuel Alito to the Supreme Court.

[DO] [cross-posted at Concurring Opinions]

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