theatlantic:

13 Final Thoughts About the Health Care Arguments

1. A full season. The thing about Bush v. Gore, which everyone cited this week, is that the justices rendered their ruling almost immediately. The final stay in that case was issued on a Saturday morning. Two days later, on a Monday, the justices heard oral argument. The next night they rendered the decision that gave the election to George W. Bush (a decision, I will add, that resulted in the continuing conservative dominance of the Court today). On the care act, we are going to have wait roughly 90 days for an answer to the big questions. Those next three months seem like they would be more likely to work in favor of the act than against it.

2. Lay off The Donald. Of all the themes of the week, perhaps the most unfortunate was the concept that the care act is going to be struck down because of the performance of the solicitor general of the United States, Donald Verrilli. This is nonsense — and precisely the sort of horse-race crap that usually sullies political coverage. Verrilli didn’t just wake up Monday morning and become an idiot. First, he was facing a hostile court (more hostile, I will again add, than any appellate court yet to hear these care act cases). Second, it just doesn’t matter. Oral argument is just the swirl at the top of the sundae in cases like this.

3. The lower courts. One under-reported theme this week was the gulf between all those lower court decisions upholding the act and the reception the statute received from the Court’s conservatives. If the law is as patently unconstitutional as some of the justices painted it to be, then why wasn’t it routed at the lower court levels? Why did conservative judges like 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, an appointee of George W. Bush, endorse it? The dozens of lower court judges who considered the law a valid exercise of Congressional power are just as smart as the justices, aren’t they? And they are supposed to be following existing precedent, aren’t they? It’s the Supreme Court that’s the outlier here.

Read the rest. [Image: Reuters]

Se also: Guardian » Supreme Court Transcripts