by Nathaniel Persily, Gilian E. Metzger, and Trevor W. Morrison (eds.). New York: Oxford University Press, 2013. 400pp. Cloth $99. ISBN: 978-0199301058. Paper $39.95. ISBN: 978-0199301065
Reviewed by David Glick, Department of Political Science, Boston University
Few Supreme Court issues provide more fodder for an edited volume than those related to the Affordable Care Act. THE HEALTH CARE CASE, edited by Nathaniel Persily, Gillian E. Metzger, and Trevor Morrison, illustrates this fact by assembling 20 essays about, as the subtitle puts it, “the Supreme Court’s decision and its implications.” In this single volume one can find thoughtful and provocative arguments about the Constitutional meaning of “proper,” why upholding the mandate as a tax but not a penalty matters, why the ostensible Medicaid expansion victory is bad for state sovereignty, and how Roberts’s tax decision was influenced by Brandeis through a decades-long professional network.
The book is primarily a “legal” book in that nearly all of the contributors are law professors, but the essays capture the immediate aftermath of the case from a variety of angles. They comprise topics ranging from detailed discussions of classic commerce clause cases, to Roberts’s role as Chief Justice, to federalism and social insurance beyond health care. In short, you can judge this book by its cover (and table of contents) in a very good way. It delivers exactly what it promises: a collection of really interesting and varied essays about the Affordable Act Case from many of the leading voices in the field. Moreover, and this may become a bigger deal in time, the volume captures arguments made immediately after the decisions without the benefit of hindsight. As the editors note, the book went to press less than a year after the decisions.
The editors stay out of the way and let the pieces speak for themselves. They only speak directly as editors in an eight page introductory section that includes an excellent and concise summary of the background and resolution of the case. To the extent that the editors introduce a theme on top of the common subject matter, it is “surprise.” As they note, surprises far more interesting than “we can’t always predict by attitudinal model” appear throughout the case from beginning (surprise that the challenges made their way through the courts) to end (Roberts’s unexpected decision). I had never thought about it this way, but as a difference with other landmark cases, I think it works. Many, but certainly not all, of the essays touch on surprise.
Because the book is a collection of pieces without a central argument, I will simply summarize its organization and the breadth of its coverage without discussing the specifics of the 20 unique arguments. The first section comprises five pieces that take on the case as a whole and discuss what it all means. For example, Jack Balkin argues that the decision is best understood as an [*103] example of judicial legitimation of state building, Randy Barnett provides a nuanced answer to the question of “who won?” and Richard Epstein discusses both commerce and the taxing power from an originalist perspective. The second section offers the narrowest and most legalistic pieces. These essays essentially take on one line of argument, or one dimension of the question, in depth. For example, Jamal Greene discusses the absence of substantive due process arguments and Ilya Somin focuses on the “proper’’ half of the necessary and proper clause and its relevance in the ACA case.
The third section tends more towards judicial politics with a focus on Chief Justice Roberts and questions about his motivations. For the most part, this section, (e.g. Jonathan Adler and Neil Siegel), push the conclusion toward good faith law grounded in Robert’s philosophy and away from the strategic retreat narrative that has gained traction elsewhere. Finally, the fourth section focuses on the decision’s broader implications. This section includes a piece on public opinion by Andrea Campbell and Nathaniel Persily, and an early piece about the second wave of ACA challenges which are now working their way through the courts by Timothy Jost. This final section in the book is also where one can find discussion of the Medicaid expansion ruling and its implications on Federalism, policy design, and other issues.
This collection has many virtues, but I will only touch on a couple that concern the book broadly. One thing that stood out to me was the essays’ collective ability to appeal to a wide audience. This is first and foremost an academic book written by academics for academics, but it should reach multiple audiences. I see it serving multiple purposes. As an academic book, I am confident that people who “do this for a living,” will, along with learning new facts along the way, a) find points they wish they had thought of themselves, b) find points they wish the lawyers on their preferred side of the case had made, and c) find points that they want to write an immediate response to.
I am also confident that those who “teach this stuff for a living” will easily find pieces to use in class. I know, for example, that I will use some of the legal and doctrinal pieces in my Constitutional Development course when teaching not only the ACA case, but also some of its classic ancestors like MCCULLOCH. I can also imagine using some pieces from the Chief Justice section when teaching judicial politics and some from the impact section when teaching about federalism and policy. Finally, I think that many pieces in this book will even appeal to a broader popular audience. Indeed, I think that the accessibility of the writing in this book is a real asset. Many of the pieces take the time to explain ideas and summarize cases that would be common knowledge to professional readers (including for example MARBURY). A moderately informed reader, with an interest in these issues but little background in law, could enjoy and engage with this book.
As I hope I have made clear, I think the collection very effectively achieves its goals and will serve as a great one stop resource and a source for new and insightful takes on the case. I have only a few quibbles that are worth noting. My most substantive critique is that the book [*104] unfortunately reflects the much broader societal inclination to obsess over the mandate to the detriment of the Medicaid expansion. As the implementation of the actual law and the impact section in the book make clear, the Medicaid decision was highly consequential for federalism, politics, and most importantly for people’s lives. Unfortunately, the first two sections, which are the doctrinal part of the book, hardly touch the Medicaid expansion arguments and ruling. I would love to see at least a couple of pieces dissect the logic of the Medicaid opinion and/or highlight arguments that could have been made but were not.
My other very minor critique, which is probably a bit unfair, is that the book clearly reads as a loose collection of independent pieces rather than a cohesive whole. In an ideal world, some of the pieces would directly engage with each other. Of course, this is much harder when they are published simultaneously instead of sequentially and when the book comes to market so quickly. Nevertheless, there were plenty of times when it felt like two pieces that should be in direct dialogue simply sailed past each other and were written without knowing what the other said. I also see this as a missed opportunity because the overall tone of the book is so sober compared to health care debate in any other setting. In a moment of collective flattery it is worth noting that the book is a refreshing reminder of the benefits of academic norms and approaches to issues and of legal arguments’ ability to take the edge off of what are vicious debates everywhere else. Another implication of the book being a loose collection is essays is that some things, both ideas and bits of background, get repeated. Many pieces summarize the same cases for example. Of course, what comes off as repetitiveness for one reading from cover to cover is what makes it easy for another to pick and choose pieces. I suspect the latter is how most will use the book. I also suspect that they will pick and choose far more than a couple of pieces given the variety and quality of the volume’s components.
Copyright 2014 by the author, David Glick