By Melissa Bynes Brooks
April 3, 2012

“Outsiders see and insiders know.”

It’s not a coincidence that President Barack Obama was unabashedly certain in his prediction about the outcome of the Supreme Court’s imminent decision regarding the Affordable Care Act (Obama Care), when he said on April 2, 2012, “I’m confident that the Supreme Court will 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.”

President Barack Obama, an “Insider”, possesses knowledge of the legal precedents and constitutional merits that will influence the decision about Obama Care. Many “Outsiders” do not fully comprehend all of the dynamics at play. The Supreme Court has been charged with ensuring that, the American people will not have their rights infringed upon in tandem with an individual mandate to purchase health care insurance. Conservatives form a majority on the Supreme Court and most opponents of Obama Care are betting the law is going to be repealed.

The caveat is that even as opponents of Obama Care come out of the shadows peering with contempt for supposed infringements on their personal freedoms and liberties, the faux pas will be jurisprudence of originalism which may just be the conservative lifeline that keeps Obama Care from sinking. Many conservatives are proponents of jurisprudence of originalism which says the Constitution should be read according to its original implications at the time it was drafted and ratified. Translation, decisions regarding law should be considered in tandem to the purpose and values of the constitution and should not be influenced by partisan philosophies. Conservative principles and values often times align with, “What is in the best interest of the Union.”

As Ramesh Ponnuru of National Review has put it, judicial restraint “is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress, or state or local governments.” During his 2005 Senate confirmation hearings, Chief Justice John Roberts stressed his belief that the Supreme Court should practice “judicial modesty,” a respect for precedent and consensus that he extended even to the abortion-legalizing Roe v. Wade (1973), a case Roberts described as “the settled law of the land.”

Then again, you never know. In Citizens United later demonstrated, Roberts’ judicial modesty has limits. In his concurrence in that case, Roberts argued that the Court was perfectly justified in overturning its decisions “if adherence to a precedent actually impedes the stable and orderly adjudication of future cases”—when, for example, “the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.”

As with most things in life, the pendulum swings both ways but I’m all in with President Barack Obama’s prediction that the law will be upheld, since the price tag for repealing Obama Care would have an incontrovertible impact on the nation’s deficit of at least, a trillion dollars.

And…how productive will that be?


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House (2011). The Price of Repealing the Affordable Care Act. Retrieved April 3, 2012, from

Whittington, K.E. (2006). The Heritage Foundation. How to Read the Constitution Self Government and the Jurisprudence of Originalism. Retrieved April 3, 2012, from

The New York Times (2012).Health Care Reform and the Supreme Court (Affordable Care Act). Retrieved April 3, 2012, from

Root, D. Conservatives v. Libertarians (2010). The Debate Over Judicial Activism Divides Former Allies. Retrieved April 3, 2012, from F

Small, R. C. (2011). Harvard Law School Forum on Corporate Governance and Financial Regulation. A Theory of Income Smoothing, When Insiders Know More Than Outsiders. Retrieved on April 3, 2012, from