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The Aggressive-Aggressive Virtues

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The hot argument based on today’s argument is likely to be the idea that the Supreme Court will just duck the question of the ACA’s constitutionality using a jurisdictional dodge. It’s possible, but I actually don’t think it’s very likely. How I read history differently is that I see the courts ducking cases where a ruling would lack significant political support, not ducking “politically divisive” cases per se. To cite another example, the Court invented a (legally erroneous) reason to duck an interracial marriage case in the mid 50s, for example, because they didn’t want to uphold bans on interracial marriage but striking it down would have been enormously unpopular, and not just in the Jim Crow states. In this case, conversely, the Court would have more than sufficient political and public support if they vote to strike down the ACA; they have no reason to duck the case unless they want to on the merits anyway.

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