Gearing Up for the Courtroom Battle


By Hadley Heath

The battle lines are drawn.  The time has come.  Just days from now the Supreme Court will hear oral arguments in the ObamaCare lawsuit brought by Florida, 25 other states, and the NFIB.

Groups on both sides of the issue are gearing up for rallies, protests, and even prayer vigils surrounding the courthouse on the days of the arguments: March 26-28.  A concurrent PR battle will be waged on TV sets and in newspapers across the country.

But the battle inside the courtroom matters much more.  The nine Justices will decide the fate of the law; a handful of lawyers will argue the issues.  For months, these lawyers have been carefully crafting arguments that will appeal to each of the nine Justices, their tendancies, and opinions they have authored. The task before these lawyers is like dancing with nine different partners, all to one song. The steps may vary, and some of the partners will follow more willingly than others, but the lawyers must keep the beat if they want to make a compelling case. 

The main challenges and defenses of the law will be no surprise.  We've seen the briefs filed by both sides.  We've watched this case - and many others - before district and appellate courts.  But everything changes at the Supreme Court level.  Not only are the stakes ultimately high, but the process by which the Justices will make their decision is different.  While other federal judges are more likely to rule according to case precedents, Justices know they can set precedent.

As Adam White wrote in this week's Weekly Standard:

The candid equivocations offered by Sutton, Silberman, and Kavanaugh [federal judges who upheld the mandate] are themselves the reflection of the equivocating themes and tendencies at the root of this case. The judges recoiled from the notion of unlimited federal power, yet they hesitated to insert the courts into a hotly contested policy fight. And because each of these appellate judges is committed to following precedent, their task was made effectively impossible by the absence of helpful Supreme Court precedents. Obama-care’s individual mandate simply pressed beyond the Court’s precedents, into uncharted constitutional territory.

But where the lower-court judges could blame disconcerting results on the Supreme Court’s Commerce Clause ambivalence, the Supreme Court justices enjoy no such luxury. They have nowhere to turn but to themselves. When faced with an unprecedented issue, it falls to them to set the precedent.

Next week looks to be one for Supreme Court history.


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