South Carolina BAR Journal
SC Lawyer, November 2012, #2.
Supreme Prescriptions America, Take Your Medicine!
South Carolina LawyerNovember 2012Supreme Prescriptions America, Take Your Medicine!A Review of the 2011-12 U.S. Supreme Court TermBy Miller W. Shealy Jr.Well, we have just finished another rollicking term at the U.S. Supreme Court. The good news: the Republic still endures! The bad news: the Supremes are already back with a sequel this fall!
How should we characterize the 2011-2012 term? This time, it's easy. For most of last fall and spring the soap opera droned on for months. Talking heads and media pundits, all of the major news magazines, and every network offered up one constitutional law "expert" after another to give their prediction on what the high Court would do about "Obamacare." Several high profile politicians made predictions, some justices even hinted at infighting on the Court and many political wonks claimed that the Obama presidency hung in the balance. So, what to call this great soap opera? Well, "General Hospital" and "Days of Our Lives" are already taken, but I like "Supreme Prescriptions." What better way to characterize the drama on and off the Court? As the justices secretly debated the diagnosis, Americans waited nervously on the results. In the most important case of the term, and what will surely be a landmark case for years, the Court told Americans to take their medicine! For some it was a spoonful of sugar, for others it was a big dose of castor oil. But will this medicine work? Nobody knows. Just keep taking it, and come back in 20 years if you aren't better.
1n National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), the Court upheld the Patient Protection and Affordable Care Act (PPACA) and the Health Care and Reconciliation Act (HCERA)-commonly referred to as "Obamacare"-against numerous constitutional challenges. All you have to do is a Google or Yahoo search and you can get opinions and conspiracy theories from all across the spectrum, both political and intellectual, about what the Court did and why it did it. At the center of this soap opera is the Chief Justice, John Roberts. The widespread prognosis from pundits and "experts" was that the Chief Justice would side with the Court's "conservatives" (Scalia, Thomas, Alito and Kennedy) and vote to strike down "Obamacare." Instead, the Chief Justice went with the "liberals" (Sotomayor, Ginsburg, Kagan and Breyer). This was a shock to just about everybody, as it was widely assumed that if a "conservative" was to leave the fold, it would probably be Kennedy. It is certainly more interesting to speculate why the Chief Justice switched his vote; he almost certainly did as close readers of the opinions can see. However, until he retires, if he ever does, and writes his memoirs, I think we will never truly know. At any rate, we may have to wait a long time. The Chief Justice is only 57, young...