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In his book, Unprecedented: The Constitutional Challenge to Obamacare (2013), Professor Josh Blackman makes three major conclusions: (1) the Patient Protection and Affordable Care Act of 2010 (ACA/Obamacare) was unprecedented in a number of ways; (2) despite the Supreme Court eventually voting to uphold almost all of the ACA, the litigation was, in many respects, a substantial victory for the conservative legal movement; and (3) to the extent Chief Justice Roberts may have changed his position in the case sometime between his initial vote following oral argument and his final decision, it was likely the product of a desire to preserve long-term court legitimacy against a background of liberal political and media pressure. This review challenges each of these three conclusions, presenting the argument that: (1) the ACA, while a major piece of legislation, is not that unprecedented; (2) the litigation outcome was a substantial defeat for the conservative legal movement; and (3) the likely change in Chief Justice Roberts' position was due more to the dynamics of internal Court draft opinion writing, not outside political and media pressure.
About the author
R. Randall Kelso is the Spurgeon E. Bell Distinguished Professor of Law at South Texas College of Law/Houston. He received a B.A., 1976, from the University of Chicago; and a J.D., 1979, from the University of Wisconsin-Madison. He is the author of many articles and books on Constitutional Law, Jurisprudence, and other related topics.
