National Federation of Independent Business v. Sebelius: Five Takes

In this article, following our now-famous “Five Takes” format, we will look at some possible meanings and implications of the Supreme Court’s decision. We first consider possible analogies between NFIB and two other famous cases whose opinions are held out as deftly straddling the line between principle and prudence: Marbury v. Madison and the Bakke case (Takes One and Two). Takes Three and Four examine the opinion though the lens of constitutional theory. We consider whether the decision, Chief Justice Roberts’s opinion especially, served what Charles Black called the Court’s “legitimating” function, quelling doubts about the Act’s constitutionality and, thus, its legitimacy. We further consider whether, in ultimately upholding the Act despite its relative unpopularity, Chief Justice Roberts’s opinion could be seen as an example of judicial restraint a la James Bradley Thayer. Finally, in Take Five, we consider that the peculiar construction of the opinion handed the Administration a somewhat Pyrrhic victory while laying the foundation for robust judicially-enforced limits on congressional power. A brief conclusion follows.