In 1935, physicist Erwin Schrodinger proposed a thought experiment to demonstrate the irrationality of the then-current theory of quantum mechanics. The experiment, remembered as “Schrodinger’s cat,” held that a cat in a box is simultaneously dead and alive until the box is opened and the cat observed. This jumped to mind while I read Chief Justice John G. Roberts Jr.‘ opinion on the Affordable Care Act.
Justice Roberts found that the mandate was a tax, though it was not a tax before reaching the Supreme Court. As the condition of the cat in the box is unknown until the lid is lifted, Obamacare was not a tax until ruled so by Justice Roberts.
The irrationality of the argument did not escape Justice Samuel Anthony Alito Jr. During the oral arguments, Justice Alito challenged Solicitor General Donald Verrilli, “Today you are arguing the penalty is not a tax, tomorrow you will be back and you will be arguing the penalty is a tax.” Justice Alito did not leave it there: “Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?” Mr. Verrilli answered no, recognizing that his argument was illogical and without precedent. Yet an undaunted Justice Roberts declared the penalty both a tax and not a tax - even after it was observed. Not even Schrodinger’s cat could do that.
Justice Roberts‘ opinion states: “[T]he court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” His words bear an eerie resemblance to those in an 1857 decision not cited in Justice Roberts‘ opinion. That decision reads, “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws.” That quote is from Chief Justice Roger B. Taney’s Dred Scott decision. We all know the bar of history has not been kind to Taney.
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