Affordable convergence: "Reasonable interpretation" and the affordable care act

Harvard Law Review

Volumn 126, Issue 1, 2012, Pages 117-149

  Minow, Martha ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; HEALTH CARE POLICY; HUMAN; JURISPRUDENCE; LEGAL ASPECT; POLITICS; UNITED STATES;

HEALTH CARE REFORM; HUMANS; PATIENT PROTECTION AND AFFORDABLE CARE ACT; POLITICS; SUPREME COURT DECISIONS; UNITED STATES;

EID: 84869761858     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (207)

1. Joseph Story, Commentaries on the Constitution of the United States 419 (Boston, Hillard, Gray & Co. 1833).
2. Greg Stohr, Record Number of Amicus Briefs Filed in Health Care Cases, BloombergNews (Mar. 15, 2012, 12:55 PM), http://go.bloomberg.com/health-care-supreme-court/2012-03-15/record-number-of-amicus-briefs-filed-in-health-care-cases/.
3. See David Lauter, Bad Omen for Healthcare Law: Many Comments from the Justices, L.A. Times (Mar. 30, 2012), http://articles.latimes.com/2012/mar/30/news/la-pn-bad-omen-for-healthcare-law-many-comments-from-the-justices-20120329.
4. Pub. L. No. 111-148, 124 Stat. 119 (2010) (to be codified as amended at scattered sections of 26 and 42 U.S.C.).
5. See NFIB, 132 S. Ct. at 2609 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part). Given the view of Chief Justice Roberts, Justice Ginsburg's opinion joined his remedy for the constitutional violation he identified-with a total of seven Justices in agreement on that violation.
6. See NFIB, 132 S. Ct. at 2609 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part). Given the view of Chief Justice Roberts, Justice Ginsburg's opinion joined his remedy for the constitutional violation he identified-with a total of seven Justices in agreement on that violation.
7. See, e.g., Jonathan Chait, John Roberts Saves Us All, N.Y. Mag. (June 28, 2012, 11:33 AM), http://nymag.com/daily/intel/2012/06/john-roberts-saves-us-all.html (speculating that the Chief Justice may have sought to avoid a crisis, which would have jeopardized the Court's and his own reputations).
8. See, e.g., David Von Drehle, The Upholder: How John Roberts Vindicated the Virtue of Compromise, Time, July 15, 2012, at 1, 30.
9. Joseph Story, Commentaries on the Constitution of the United States 419 (Boston, Hillard, Gray & Co. 1833).
10. For early efforts to predict the potential repercussions for health care and health insurance markets, for employers and for patients, as well as for American politics, see Trudy Lieberman, Spinning the Supreme Court's Healthcare Decision, Colum. Journalism Rev. (July 5, 2012, 2:42 PM), http://www.cjr.org/swing_states_project/spinning_the_supreme_courts_he.php?page=all.
11. See generally Stuart Altman & David Shactman, Power, Politics, andUniversal Health Care (2011).
12. Compare Michael F. Cannon & Michael D. Tanner, Healthy Competition(2005) (arguing that competitive markets offer better solutions).
13. Karen E. Lasser, David U. Himmelstein & Steffie Woolhandler, Access to Care, Health Satatus, and Health Disparities in the United States and Canada: Results of a Cross-National Population-Based Survey, 96 Am. J. Pub. Health 1300 (2006) (arguing that Canada's single-payer system offers better results than competitive health care insurance).
14. See World Health Org., The World Health Report: Health SystemsFinancing: The Path to Universal Coverage 41-47 (2010) (discussing problems with direct-payment systems and various ways in which countries have moved away from that model).
15. See generally Pamela Behan, Solving the Health Care Problem (2006).
16. Karen S. Palmer, A Brief History: Universal Health Care Efforts in the US, Address at the Physicians for a National Health Program (Spring 1999), available at http://www.pnhp.org/facts/a-brief-history-universal-health-care-efforts-in-the-us (describing unsuccessful efforts by Presidents Theodore Roosevelt, Franklin Delano Roosevelt, Harry Truman, and Lyndon Baines Johnson).
17. See Library of Congress, Bill Summary & Status: Patient Protection and Affordable Care Act, Thomas, http://thomas.loc.gov/cgi-bin/bdquery/z?d111:HR03590:@@@R (last visited Sept. 29, 2012) (Senate vote, 60-39).
18. See Chris Cillizza, The Political Fight on Health Care Is Over. Republicans Won., TheFix (June 20, 2012, 1:40 PM), http://www.washingtonpost.com/blogs/the-fix/post/the-politicalfight-on-health-care-is-over-republicans-won/2012/06/20/gJQAz6CdqV_blog.html.
19. See Health Care Reform Fight Shifts from Congress to the Courts, Fox News (Mar. 20, 2010), http://www.foxnews.com/politics/2010/03/22/health-care-reform-fight-shifts-congresscourts/.
20. The Reagan Justice Department classified Wickard v. Filburn, 317 U.S. 111 (1942), as "inconsistent" with a proper understanding of constitutional law.
21. 132 S. Ct. 2566.
22. 132 S. Ct. 2566.
23. 132 S. Ct. 2566.
24. 132 S. Ct. 2566.
25. 132 S. Ct. 2566.
26. 132 S. Ct. 2566.
27. 132 S. Ct. 2566.
28. 132 S. Ct. 2566.
29. 132 S. Ct. 2566.
30. 132 S. Ct. 2566.
31. 132 S. Ct. 2566.
32. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
33. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
34. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
35. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
36. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
37. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
38. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
39. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
40. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
41. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
42. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
43. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
44. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
45. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
46. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
47. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
48. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
49. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
50. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
51. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
52. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
53. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
54. NFIB, 132 S. Ct. at 2609, 2615-16, 2621 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
55. On origins and uses of the term, "parade of horribles, " see Ben Zimmer, New England, Home of the Horribles, Boston Globe, July 1, 2012, at K1, tracing the phrase to satiric commentary about the Massachusetts Ancient and Honorable Artillery Company, dubbed "the antiques and horribles. "
56. See James B. Stewart, How Broccoli Landed on the Supreme Court Menu, N.Y. Times, June 14, 2012, at A1, available at http://www.nytimes.com/2012/06/14/business/howbroccoli-became-a-symbol-in-the-health-care-debate.html?_r=1.
57. NFIB, 132 S. Ct at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (quoting The Federalist No. 33, at 202 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (internal quotation mark omitted).
58. NFIB, 132 S. Ct at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (quoting The Federalist No. 33, at 202 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (internal quotation mark omitted).
59. NFIB, 132 S. Ct. at 2623-24 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (citing United States v. Lopez, 514 U.S. 549 (1995) (rejecting Congress's effort to criminalize possession of a gun in a local school zone).
60. NFIB, 132 S. Ct. at 2623-24 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part) (citing United States v. Lopez, 514 U.S. 549 (1995) (rejecting Congress's effort to criminalize possession of a gun in a local school zone).
61. For an elaboration of Justice Ginsburg's point, see Leon Wieseltier, Two Sentences, NewRepublic, Aug. 2, 2012, at 48 ("Ginsburg exposed the speciousness of the panic. Against the conservatives, she wickedly cited an admonition about slippery slope arguments by Robert Bork. Hysteria, she correctly suggested, is just a perspective.... Ginsburg's sentence rehabilitated the modulated nature of national action, " meaning power "controlled by reason and balanced between efficacy and legitimacy. ").
62. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
63. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
64. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
65. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
66. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
67. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
68. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
69. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
70. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
71. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
72. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
73. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
74. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
75. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
76. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
77. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
78. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
79. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
80. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
81. See NFIB, 132 S. Ct. at 2611, 2619-20, 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
82. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
83. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
84. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
85. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
86. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
87. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
88. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
89. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
90. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
91. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
92. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
93. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
94. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
95. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
96. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
97. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
98. NFIB, 132 S. Ct. at 2614 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
99. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
100. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
101. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
102. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
103. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
104. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
105. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
106. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
107. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
108. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
109. NFIB, 132 S. Ct. at 2623 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
110. See, e.g., Eric Wemple, CNN and Fox Get It Wrong on Health-Care Ruling, Wash. Post(June 28, 2012, 10:46 AM), http://www.washingtonpost.com/blogs/erik-wemple/post/cnncorrection-on-health-care-ruling-insane/2012/06/28/gJQAg6w78V_blog.html (displaying incorrect reports and corrections by major news outlets).
111. See Mark Sherman, More Nuanced View of Roberts After Health Care Law, AssociatedPress: The Big Story (July 1, 2012, 8:08 AM), http://bigstory.ap.org/article/more-nuancedview-roberts-after-health-care-law.
112. NFIB, 132 S. Ct. at 2585-93 (opinion of Roberts, C.J.).
113. NFIB, 132 S. Ct. at 2585-93 (opinion of Roberts, C.J.).
114. NFIB, 132 S. Ct. at 2585-93 (opinion of Roberts, C.J.).
115. NFIB, 132 S. Ct. at 2585-93 (opinion of Roberts, C.J.).
116. NFIB, 132 S. Ct. at 2585-93 (opinion of Roberts, C.J.).
117. NFIB, 132 S. Ct. at 2585-93 (opinion of Roberts, C.J.).
118. NFIB, 132 S. Ct. at 2585-93 (opinion of Roberts, C.J.).
119. NFIB, 132 S. Ct. at 2585-93 (opinion of Roberts, C.J.).
120. NFIB, 132 S. Ct. at 2585-93 (opinion of Roberts, C.J.).
121. 26 U.S.C. § 7421(a) (2006).
122. NFIB, 132 S. Ct. at 2594-2600.
123. NFIB, 132 S. Ct. at 2594-2600.
124. NFIB, 132 S. Ct. at 2594-2600.
125. NFIB, 132 S. Ct. at 2594-2600.
126. NFIB, 132 S. Ct. at 2594-2600.
127. NFIB, 132 S. Ct. at 2594-2600.
128. Joseph Story, Commentaries on the Constitution of the United States 419 (Boston, Hillard, Gray & Co. 1833).
129. Joseph Story, Commentaries on the Constitution of the United States 419 (Boston, Hillard, Gray & Co. 1833).
130. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
131. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
132. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
133. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
134. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
135. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
136. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
137. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
138. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
139. See NFIB, 132 S. Ct. at 2589, 2593-94 (opinion of Roberts, C.J.).
140. NFIB, 132 S. Ct. at 2589 (opinion of Roberts, C.J.).
141. NFIB, 132 S. Ct. at 2589 (opinion of Roberts, C.J.).
142. Industrial Union Department AFL-CIO v. American Petroleum Institute was argued on October 10, 1979, and decided on July 2, 1980, 448 U.S. at 607, and Chief Justice Roberts served as a clerk for then-Justice Rehnquist between 1980 and 1981. Biographies of Current Justices of the Supreme Court, Supreme Court of the United States, http://www.supremecourt. gov/about/biographies.aspx (last visited Sept. 29, 2012). In announcing his nomination of John Roberts to serve as the Supreme Court's 17th Chief Justice, President George W. Bush remarked: "Twenty-five years ago, John Roberts came to Washington as a clerk to Justice William Rehnquist. In his boss, the young law clerk found a role model, a professional mentor, and a friend for life. I'm certain that Chief Justice Rehnquist was hoping to welcome John Roberts as a colleague, and we're all sorry that day didn't come. Yet it's fitting that a great chief justice be followed in office by a person who shared his deep reverence for the Constitution, his profound respect for the Supreme Court, and his complete devotion to the cause of justice." President George W. Bush, Nomination of John Roberts as Chief Justice (September 5, 2005), available at http://www.presidentialrhetoric.com/speeches/09.05.05.html.
143. By contrast, on the Warren Court, Justice Frankfurter (nominated by President Roosevelt) was often to the right of the Chief Justice and Justice Brennan (both Eisenhower nominees). On the Burger and Rehnquist Courts, Justice White (a Kennedy nominee) was frequently to the right of Justice Blackmun (a Nixon nominee). So, too, in the first years of the Roberts Court, Justice Stevens (a Ford nominee) and Justice Souter (a George H.W. Bush nominee) were sometimes to the left of Justices Ginsburg or Breyer (both Clinton nominees). See generally William M. Landes & Richard A. Posner, Rational Judicial Behavior: A Statistical Study, 1 J. Legal Analysis 775, 782-83 (2009) (providing a ranking of the Justices' votes in nonunanimous cases during the period between 1937 and 2007).
144. NFIB, 132 S. Ct. at 2589 (opinion of Roberts, C.J.) (quoting South Carolina v. United States, 199 U.S. 437, 449 (1905) (internal quotation marks omitted).
145. NFIB, 132 S. Ct. at 2589 (opinion of Roberts, C.J.) (quoting South Carolina v. United States, 199 U.S. 437, 449 (1905) (internal quotation marks omitted).
146. NFIB, 132 S. Ct. at 2589 (opinion of Roberts, C.J.) (quoting South Carolina v. United States, 199 U.S. 437, 449 (1905) (internal quotation marks omitted).
147. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
148. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
149. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
150. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
151. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
152. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
153. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
154. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
155. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
156. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
157. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
158. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
159. See NFIB, 132 S. Ct. at 2586-87 n.4 (opinion of Roberts, C.J.).
160. See NFIB, 132 S. Ct. at 2629 & n.12 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
161. See NFIB, 132 S. Ct. at 2629 & n.12 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
162. See NFIB, 132 S. Ct. at 2629 & n.12 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
163. See Pamela S. Karlan, Constitutional Law as Trademark, 43 U.C. Davis L. Rev. 385, 401 (2009).
164. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
165. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
166. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
167. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
168. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
169. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
170. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
171. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
172. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
173. NFIB, 132 S. Ct. at 2591 (opinion of Roberts, C.J.).
174. Professor Einer Elhauge argues that Chief Justice Roberts's tax power analysis applies only to those consumers who are engaged in commerce, because the penalty attaches only to consumers who have earned income.
175. See NFIB, 132 S. Ct. at 2604-05 (opinion of Roberts, C.J.).
176. See NFIB, 132 S. Ct. at 2604-05 (opinion of Roberts, C.J.).
177. See NFIB, 132 S. Ct. at 2604-05 (opinion of Roberts, C.J.).
178. See NFIB, 132 S. Ct. at 2604-05 (opinion of Roberts, C.J.).
179. See NFIB, 132 S. Ct. at 2604-05 (opinion of Roberts, C.J.).
180. See NFIB, 132 S. Ct. at 2604-05 (opinion of Roberts, C.J.).
181. See Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L.J. 345, 372-74 (2008).
182. See NFIB, 132 S. Ct. at 2585 (opinion of Roberts, C.J.).
183. 514 U.S. 549.
184. See NFIB, 132 S. Ct. at 2585 (opinion of Roberts, C.J.).
185. 317 U.S. 111 (1942).
186. See NFIB, 132 S. Ct. at 2579 (majority opinion).
187. See NFIB, 132 S. Ct. at 2579 (majority opinion).
188. NFIB, 132 S. Ct. at 2585-86 (opinion of Roberts, C.J.).
189. In this respect, the opinion of the Chief Justice adhered to the kind of judicial restraint that respects judicial precedents rather than judicial deference to the Constitution alone. See Keith E. Whittington, Constitutional Interpretation: Textual Meaning, OriginalIntent, and Judicial Review 4 (1999).
190. For an elaboration of this contrast, see Joel Alicea, Chief Justice Roberts and the Changing Conservative Legal Movement, Witherspoon Inst. (July 10, 2012), http://www.thepublicdiscourse.com/2012/07/5889.
191. For an elaboration of this contrast, see Joel Alicea, Chief Justice Roberts and the Changing Conservative Legal Movement, Witherspoon Inst. (July 10, 2012), http://www.thepublicdiscourse.com/2012/07/5889.
192. See NFIB, 132 S. Ct. at 2577-78.
193. See NFIB, 132 S. Ct. at 2577-78.
194. See NFIB, 132 S. Ct. at 2577-78.
195. Professor Bruce Ackerman puts the effect of the decision this way: "Having blown apart the New Deal underpinnings of modern government, [Chief Justice Roberts] then saved the Affordable Care Act by upholding the mandate under the federal government's taxing power. " Bruce Ackerman, Roberts Raises the Election Year Stakes, Huffington Post (June 29, 2012, 8:43 AM), http://www.huffingtonpost.com/bruce-ackerman/roberts-raises-the-electi_b_1637073.html.
196. Merriam-Webster Dictionary defines compromise as a "settlement of differences by arbitration or by consent reached by mutual concessions. " Merriam-Webster's CollegiateDictionary 237 (10th ed. 1993).
197. Cf. Clare Cushman, Courtwatchers: Eyewitness Accounts in SupremeCourt History 26 (2011) (describing the early Supreme Court practice of separate opinions by each Justice, requiring observers to "count up the votes" to determine a case's outcome).
198. Cf. Frank I. Michelman, The Supreme Court, 1985 Term-Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4, 36 (1986) ([Justice O'Connor's opinion] directly addresses each of the other four judicial speakers in the case, calling each by name, the only one of the five opinions to do so. It speaks in the voice of colloquy, not authority.
199. Some may suggest that in joining the Chief Justice in the holding regarding Spending Clause problems and the Medicaid expansion as a discrete remedy for those problems, Justices Breyer and Kagan gave evidence of a compromise. It is certainly the case that the Spending Clause ruling-securing seven votes-opens a new and serious avenue for challenging and confining federal legislative action. Yet it is difficult to imagine, much less discern, how such a compromise could have proceeded. Surely, the Chief Justice's analysis of the taxing power did not emerge from a "trade" for the votes of these two on the Medicaid expansion. He had to assess whether the taxing power was sufficient and did so. Moreover, he did not need their votes to achieve the ruling on the Medicaid expansion, given the joint dissent's conclusion that this por tion of the Act was unconstitutional. NFIB, 132 S. Ct. at 2666 (joint dissent). The unhappy and unusual stories about leaks suggesting that the Chief Justice changed his vote at some time during the Court's deliberations do not support an explanation of compromise either and instead indicate-if true-the independent judgment of one Justice.
200. See Martha Minow, Is Pluralism an Ideal or a Compromise?, 40 Conn. L. Rev. 1287, 1300 (2008) ("[B]etter than compromise would be solutions where no one on competing sides has to give in because each finds common ground without sacrificing principles. That is convergence. ").
201. See Martha Minow, Is Pluralism an Ideal or a Compromise?, 40 Conn. L. Rev. 1287, 1300 (2008) ("[B]etter than compromise would be solutions where no one on competing sides has to give in because each finds common ground without sacrificing principles. That is convergence. ").
202. The opinion gave reasons for each position and no indication of a trade or alteration of a view in exchange for support by other Justices. That Congress may face more political resistance to proceeding under the tax power than under the Commerce Clause may be a boon to those individuals who seek to restrain congressional action, but this factor played no obvious role in the reasoning of Chief Justice Roberts.
203. For an elaboration of this contrast, see Joel Alicea, Chief Justice Roberts and the Changing Conservative Legal Movement, Witherspoon Inst. (July 10, 2012), http://www.thepublicdiscourse.com/2012/07/5889.
204. This is not to say that no one was pleased by the opinion or its parts. If the decision helped contribute to grounds for respecting the Court as an institution devoted to law, rather than politics, that result would be pleasing to those jurists and observers-including Chief Justice Roberts-who care about judicial authority and respect for the rule of law. See generally Gillian Metzger, To Tax, To Spend, To Regulate, 126 Harv. L. Rev. 83 (discussing "institutionalist" dimensions of the decision).
205. In an old joke, a rabbi hears a disputant tell his story, and comments, "You're right. " Then the other party explains his side, and the rabbi replies, "You're right. " His wife, listening in, interrupts, "They can't both be right!" The rabbi says, "You're right too. " In the health care litigation, Chief Justice Roberts treated the two warring camps as both right about contrasting fundamental constitutional commitments, while also rejecting particular features of their analyses. Critical to his third way is acknowledging competing constitutional values and multiple meanings of terms and concepts while forming judgments based on his conception of the role of the Supreme Court.
206. Alexander M. Bickel, The Least Dangerous Branch (1962).
207. See Motoko Rich, 'No Child' Law Whittled Down by White House, N.Y. Times, July 6, 2012, at A1.