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We will be talking about the Supreme Court’s decision to uphold the mandate as a tax for a long time.

I’ve posted my initial two cents on The Monkey Cage, a US political science blog. But let me summarise a bit here.

One of the many interesting sub-plots is what the Court’s actions this week imply for the role the Court plays relative to Congress.

Roberts clearly voted against his conservative co-ideologues on the mandate.  On the Medicaid expansion, we also see justices voting against their presumed co-ideologues in Congress.  Breyer, Kagan would be considered pretty reliable liberal votes on policy question of expanding Medicaid.  And yet they voted to limit congressional power to encourage/coerce states to implement this expansion.

Another case also showed the Court to be crucially different than Congress.  The Stolen Valor Act passed in 2005 with extremely broad bi-partisan support (cosponsors ranged from Pelosi, Conyers and Hillary Clinton on the left to Lieberman and Ben Nelson in the middle to Santorum, Tancredo and Vitter on the right).  And yet 6 justices voted to strike it.  Based on this it seems hard to argue that the justices are simply legislators in robes.  Something is different about ttheir roles and values relative to elected officials.  Forrest Maltzman and I argue that many justices have a particular commitment to free speech that can pull them away from the stands of similarly liberal or conservative members of Congress.

Dr. Michael Bailey is a Professor at Georgetown University and a visiting fellow at Oxford’s Rothermere American Institute. His latest book, co-authored with Forrest Maltzman of George Washington University, is The Constrained Court: Law, Politics, and the Decisions Justices Make, Princeton University Press, 216 pages. 

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