Conservative Legal Scholars Concerned About Health Care Arguments


Conservative legal scholars may be having second thoughts of their earlier embrace of Chief Justice John Roberts as a jurist dedicated to the rule of law thanks in large part to last week’s arguments on the Affordable Care Act.

The Los Angeles Times ran a profile of several prominent legal scholars who were deeply troubled by the tone and apparent lack of regard for precedent displayed during the arguments. Harvard Law professor and President Reagan’s solicitor general Charles Fried, who originally testified in support of Roberts’ confirmation, is now speaking out about the decidedly political tone and direction of the court under Roberts’ leadership.

From the Los Angeles Times:

If the court were to invalidate the healthcare law, “It would be more problematic than Bush v. Gore,” Fried said in an interview, referring to the case that decided the 2000 presidential race. “It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.”

His comments highlight a growing divide between an earlier generation of judicial conservatives who stressed a small role for the courts in deciding national controversies and many of today’s conservative justices who are more inclined to rein in the government.

Fried had confidently predicted the law would be easily upheld. He said he was taken aback by the tone of the arguments. “The vehemence they displayed was totally inappropriate. They seemed to adopt the tea party slogans,” he said.

Like Fried, many legal scholars including myself believed the court would uphold the law since that is what hundreds of years of precedent mandates. But the arguments showed that at least some of the justices truly have little regard for precedent and instead see themselves as political actors. For Reagan’s former solicitor general to call the behavior inappropriate shows how off the tracks the court has gone under Roberts leadership.


Related Stories:

Health Care Arguments Day Three: The Rise Of The States

Health Care Arguments Day Two: Mandate Under Fire

Health Care Arguments Day One: Common Ground


Photo from kjetil_hr via flickr.


Marsha M.
Marsha M5 years ago

Myron S. wrote My opinion: Is the independent mandate Constitutional? I'm honestly not sure. It's not a slam dunk either way.

Have you read the Second Militia Act of 1792 signed by George Washington? It REQUIRES all men between the age of 18 and 48 to buy a flintlock and ammunition (dictating thype of ammuniotion, amount, weight, in order to be ready to defend their country at a minute's notice.

Myron Scott
Myron Scott5 years ago

Quite a week, really. The President seemingly denying the propriety of judicial review and the far right acknowledging it. Maybe these really are End Times.

Luvenia V.
Luvenia V5 years ago

Jeffrey W., how does it feel to know that should the SC overturn this they will be overturning an idea that came straight from the Republicans? Maybe the President should be more careful about where he gets his ideas. He most certainly should NOT listen to the American Taliban whom YOU know as the Republicans and the Tea Party. Again if you are against the individual mandate YOU are against the Republicans that gave birth to it.

Myron Scott
Myron Scott5 years ago

Sorry for typos. Computer's going nuts - and I'm not
doing much better.


1st paragraph: ... I'd rather live with that ....
2nd graph: Omit "Still"
4th: As follows: "... clarify the question. But I'm not holding my breath.
One thing I'm sure of...."

Myron Scott
Myron Scott5 years ago

I really hate my role in this because I'm pro-Obamacare. Independent mandate, not so much; but I'd live with that than once again see health care reform fail. Nonetheless, BOTH the Tea Party and the Administration are playing fast and loose with the law here.

Still, one only has to buy car insurance if one owns a car. One has to pay the independent mandate simply by virtue of being alive.

The Obama Administration relies on the Commerce Clause for the authority to enact the
independent mandate. Selective Service is not authorized by the Commerce Clause
(assuming arguendo it is authorized by the Constitution at all).

My opinion: Is the independent mandate Constitutional? I'm honestly not sure. It's not a slam dunk either way. So I guess I'll just have to read the opinions when they're issued in hopes that they'll clarify the question. One thing I'm sure of, however, is that going with the independent mandate was the Administration's decision; it was not the free decision of true
But I'm not holding my breath.

Lynn Mansfield
Lynn Mansfield5 years ago

I would say it's a good thing Billie C. isn't on the Supreme Court since he/she knows absolutely nothing about government or the law. And I assume Steve breaks the law regularly by not buying car or homeowner's insurance since it is unconstitutional to make people buy those too.

Billie C.
Billie C5 years ago

obama seems to think he's been appointed king and has total rule over everybody including the courts. guess what obama you were elected. to bad but you were. if i was on the court i would toss anything of yours that came across my desk just because you had the nerve to think you could over power me. i'm just that way. bully me and i push back hard. i hope the court takes his legislation and bounces it back so hard it hits him in the head. maybe that will knock some sense in his brain.
i know it's an election year but wise up obama you are not a king. this country doesn't have one and we don't want one. if that's what you are after move to a place that wants one.

Jeffrey W.
Jeffrey W5 years ago

Damn, I missed this earlier. Les bons freres Koch gave me the weekend off for doing such a stellar job of looney left butt kicking here and I didn't see this when it was posted. Looks like our Jessica dutifully reproduced Obama's talking points. Good girl!

I love the attempt to claim that overturning an unconstitutional law is an extreme action of an activist court. It's so silly, I couldn't believe Obama would try it. Anyway, the U.S. Court of Appeals for the 5th Circuit wasn't amused, and our adjunct lecturer in chief got a pop quiz:

"In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

"The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Juliet Defarge
judith sanders5 years ago

If we can't be forced to buy health insurance-
how can we be forced to register for selective service?

Luvenia V.
Luvenia V5 years ago

Steve R., from your post what you seem to be saying without really saying it is the President should NOT have bought into the LIES told by the Republicans. You see Steve the mandate that individuals should have to buy insurance was the idea straight from the Republicans. True Democrats wanted a single payer plan.

I think the President should stop listening to the idiot Republicans and Tea Party before they turn us into the next Middle East, WITHOUT any real health care.