The "constitutionality" of the Obama health care law, Harvard Law School's Laurence Tribe wrote in the New York Times earlier this year, "is open and shut," adding that the challenge against it is "a political objection in legal garb."The argument for upholding the law rests on a facile application of an existing line of precedent: Look quickly and see that this case is another one of those cases and stamp the law constitutional. Characterizing the case as easy is thus part of arguing for upholding the law. That's what Tribe and others have been doing. Many of the lower court cases have, unsurprisingly, taken that route.
In announcing yesterday that it will consider the law's constitutionality, the Supreme Court said it would give an historic five-and-a-half hours to oral arguments. Perhaps by his Cambridge standard, Mr. Tribe thinks the nine Justices are a little slow. We prefer to think this shows the Court recognizes the seriousness of the constitutional issues involved. It makes those who cavalierly dismissed the very idea of a challenge two years ago look, well, constitutionally challenged.
The Supreme Court, which controls the precedents, has to choose between that easy course and drawing a line. If it draws that line and takes down the individual mandate — and perhaps the entire health care reform — it will need to inspire our belief in the truly judicial nature of its exertion of power. To set 5 1/2 hours of oral argument is to command a dramatic performance in the Theater of Law. That will help us see the result as the product of genuine legal process.
Now, our belief in the truly judicial nature of its exertion of power is important whether the Court strikes down the law or not. All that has happened so far is that the Court has rejected the presentation of the case as easy. That doesn't mean the Justices are not perceiving the case as easy. It only means they don't want you to see it that way.