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The Affordable Care Act, seersucker and courage

After the Supreme Court made its ruling on the Affordable Care Act, I heard Jeffrey Rosen say that Chief Justice John Roberts was “courageous” for not only writing what was the majority opinion issued in National Federation of Independent Business, et al. v. Sebelius, et al. but also for what he surmised were Roberts' ultimately unsuccessful, behind-the-scenes efforts to create a 6-3, as opposed to a 5-4, majority opinion. Rosen described Roberts as “courageous” for taking seriously the sacred trust of the judiciary to rise about the current polarizing political climate. Obviously, Rosen went on to say, Roberts would face a barrage of criticism from the political right for his failure to side with the other “conservative” justices on this polarizing issue. It is this decision, though — and in particular, this kind of cobbled-together majority — that paints a clear picture of the type of Supreme Court over which Roberts wants to preside, Rosen said. (You can listen to Rosen's full comments here.) Earlier this week, in The Washington Post, columnist Dana Millbank lamented the demise of the Senate’s “Seersucker Thursday,” a Washington tradition that occurred heretofore on the third Thursday in June each year. As an avid fan of seersucker, I took notice of this tragic event.

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One comment

  1. amd2107@gmail.com

    Legal professionals, judges and lawyers alike, are in agreement that a judicial opinion, including opinions of the Supreme Court of the United States, generally consists of two parts. The “holding” of a case is that part of the reasoning of the court that is essential to support the actual outcome of the dispute. The holding is binding on, i.e., dictates the outcome of similar future cases in, all lower courts. In contrast, so-called “dicta” in a case are comments by the authoring judge with no binding effect on lower courts because the comments are not essential to the outcome of the case. Query whether the Chief Justice’s exegesis on the scope of the Commerce Clause in his opinion in the Affordable Care Act case, whose holding that the Act is constitutional is based entirely on Congress’s taxing power, is part of the holding (and thus precedential) or merely non-binding dicta.

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