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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.

In prior years on “Seersucker Thursday,” senators from both political parties would join together and wear seersucker suits, white bucks and colorful ties as an homage to summer and a fun way to reach across the aisle. Often, all of the seersucker-wearing senators would attend the dairy lobby’s ice cream social together, held on the same day. This year, the Senate decided that “it would be politically unwise to be seen doing something frivolous when there’s so much conflict over major issues,” Milbank wrote.

Of course, the Affordable Care Act is one of those major issues of conflict. Milbank’s column pointed out that doing something as seemingly frivolous as wearing seersucker and attending an ice cream social together is exactly what senators should be doing together because it is bonding experiences like these that help create relationships that lead to bipartisan legislation and cooperation.

In an interesting twist, one of the few who ignored the cancellation of “Seersucker Thursday” was tea party Republican Sen. Mike Lee of Utah, one of the body’s most conservative members.

Politics and personal feelings aside, it is clear that Roberts sought common ground with other justices on a difficult issue and wrote an opinion based upon that common ground. Regardless of whether or not you agree with the opinion, the decision to work hard to create a majority and to shoulder the burden of writing an opinion on a polarizing issue was indeed courageous.

Pictured above: In this 2011 photo, seersucker-wearing senators pose in the Capitol. (Bill Clark/Roll Call via AP)

One comment

  1. 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.