Harvard Prof Predicts Politics-Free Health Care Decision

Those who believe that U.S. Supreme Court decisions are based on politics rather than law got something of a smackdown from Professor Laurence Tribe of Harvard Law School in an op-ed piece published by The New York Times. In the commentary, Prof. Tribe provides myriad reasons why the high court will not strike down the recently-enacted overhaul of health care, citing the fact that members of the Court have long upheld a broad interpretation of the Necessary and Proper clause, including some of the very Justices who are assumed to oppose the law.  Prof. Tribe writes:

“. . . the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts. . . .  Given the clear case for the [health care] law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.”

Prof. Tribe is correct that judges aren’t nearly as political as some people believe.  If he’s right about this case, it will be a useful teaching moment on how our legal system really works.

Posted: 4/1/2011 12:00:00 AM by Global Administrator | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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