Most of the journalistic/legal world is on fire with excitement for the decision in the Affordable Care Act case. The New Yorker has a critical article on the not-yet-but-really-soon-to-be-issued decision and what it means for the Court. Time Magazine has a cover picture of Justice Kennedy — “The Decider” — a close-up so close you can see the lines in his bifocals. New York Magazine wrote about how frustrating it is that Supreme Court clerks don’t leak info so there would finally, for the love of all things holy, be something to report from the Court about the health care reform case.

Folks who don’t have press passes are also keyed up. I heard a rumor from one of my neighbors that the decision would come down this week! A friend of a friend told me that the health care reform case was in the bag for the conservatives. It’s like the finals in American Idol, but no one gets to text in their vote.

For weeks, the world has speculated and waited for an opinion. Each decision day for the past month the speculation has intensified. Each decision day a decision in Obamacare has not come.

What happened at One First Street today?

Today was no different. Speaking for myself, I think the anticipation of a decision in the Affordable Care Act is overblown. Like Public Enemy says, “Don’t Believe the Hype.” (Public Citizen, on the other hand, seems to be in favor of believing the hype. Clearly, there is a split in Public authority.)

I’ll predict now that the decision about the constitutionality of Obamacare won’t be a very legally interesting case this term. (By way of full disclosure, I should note that my wife works as an attorney at Health & Human Services and did work not unrelated to the case. She’s more excited about the health care reform decision than she was about our wedding. So, it may be that my reluctance to get on the “the ACA decision will be the most important decision since Marbury v. Madison” train is more an example of normal marital sadism than I’m self-aware enough to acknowledge. But I don’t think so.)

Of course, the case matters a lot politically. Health care reform has been a central part of the president’s agenda. Though gentle readers, surely, as lawyers, we care about more lofty concerns than mere politics. We’re high-minded. When we’re excited about something at the Supreme Court, it’s because we care about the development of the law. We’re engaged in a study of a conversation about the development of our Union through the ages. Or a former SCOTUS clerk’s frisky emails.

The case may matter to the reputation of the Court, and there’s been a lot written about that in the wake of a recent study of the popularity of the Court (bottom line – the Court is doing better than Snooki, but not by much, and possibly not in New Jersey). But I don’t think so.

The ACA decision won’t be another Bush v. Gore, which resolves this case and will never be cited again — the functional equivalent of an unpublished Supreme Court opinion. But as long as there’s a defensible reasonable basis for the Court’s decision, I don’t see this as the decision that creates a popular movement to impose term limits. And after the attention on the Court’s legitimacy on the case, this won’t be a Bush v. Gore. It won’t even be a Citizens United.

Most importantly, at least to lawyers, I don’t think the decision will be as big a sea change in the law as the current hype suggests. If there are still law schools in 2042, will they teach this case in the same way they teach Lochner now? I don’t see it as likely.

Maybe the severability part will matter, if the Court gets there. We haven’t seen a big opinion on severability — on how to figure out how much of a statute to cut if a statute is in part unconstitutional — since United States v. Booker. If the Court strikes down the individual mandate and decides to opine at length about how to sever out an offending part of a statute, that could be interesting, especially since Scalia said recently the whole thing has to go.

But the Commerce Clause arguments are too developed on either side by prior opinions. Even Above the Law readers are closely split on the merits of the individual mandate — and surely this is as savvy a legal audience as could be gathered. The Affordable Care Act case won’t be a decision that blindsides the legal public like Citizens United, or Lochner, or even Crawford v. Washington. The decision doesn’t need to be a revolution to resolve the issue either way, so, out of respect for the intensity of debate surrounding the case, my bet is that it won’t be.

Regardless, whether the health care reform decision will be interesting is not an issue that the Court resolved today.

Today, in the only opinion announced from the bench (there was also a per curium opinion on a habeas case), the Court resolved that a man who is fired because he didn’t register for the selective service can complain that his firing violates his equal protection rights (because women don’t have to register), when he was fired from the kind of federal employment that sends cases about being fired for the wrong reason to the Merit Systems Protection Board.

As it happens, such a man cannot take his complaint to federal district court. Rather, the exclusive place for such a question is in the Merit Systems Protection Board.

The case is Elgin v. Department of the Treasury.

This is not where the man wants to bring this claim.

For those who like to keep score on conservative/liberal lines, the majority was written by Justice Thomas, and Justice Alito wrote the dissent.


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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