Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, June 28, 2012

Justice Ginsburg (and Justices Sotomayor, Breyer, and Kagan) on the Affordable Health-care Act


Today’s Supreme Court decision in National Federation of Independent Business v. Sebelius, etc. will be the subject of much discussion and debate for years to come. As we at the Mirror of Justice focus on many important issues that concentrate on the intersection of law and religion, the following observation of Justice Ginsburg and her colleagues in their partial concurrence and dissent might suggest that the debate and probably the litigation involving the legality of this legislation will continue for some time to come. As she says about the provisions of the Constitution that exist to check Congressional overreaching:

A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

While all of these topics identified by Justice Ginsburg are of vital concern, the one addressing interference with the free exercise of religion should be of particular interest to the contributors and readers of the Mirror of Justice. It may be too early to address with particularity how the concern shared by these Justices on “Congressional overreaching” will play out, but it would appear that this subject which Justice Ginsburg, and those who agree with her, has identified may well be in the courts in the not-too-distant future.


RJA sj




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