Friday, June 29, 2012

Kennedy loses it

Andrew Koppelman

In yesterday’s column, I discussed Chief Justice Roberts’s decision upholding (almost all of) the Affordable Care Act.  Now I’d like to discuss the world that almost came into existence – the vision of the four dissenters, Justices Scalia, Kennedy, Thomas, and Alito, who wanted to throw out the entire statute.  Roberts’s opinion has serious weaknesses, though the result was better than many expected.  The dissenters, on the other hand exhibited the highest virtue of any subordinate: they made the boss look good.  With respect to the mandate, the Medicaid restriction, and the severability question, they devised arguments even weaker than those of the Chief, proposing newly minted Constitutional doctrines that make little internal sense and appear explicable only by a determination to eradicate every bit of a law that they just don’t like.

You can read the rest of this post at, here.

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