Archive for March, 2012

Adjudicating health care reform by dissent

This article first appeared in the Daily Journal on March 15, 2012.

The procedural infrastructure within which the nation’s judicial system operates is as important as the canons of law the Courts espouse. In many ways, the doctrine of justiciability affords the federal courts an opportunity to rule with finality in matters of the U.S. Constitution, while at the same time ensuring that an appropriate distance is maintained between the three branches of federal government. Given the numerous preconditions upon which certiorari is determined, rightful passage through the Supreme Court’s Corinthian columns can seem as improbable as procuring a return ticket across the river Styx.

However, those for whom certiorari is ultimately granted can count on a few basics from the Supreme Court, including a session each first Monday in October, quill pens on counsel tables, and the Court’s own general prohibition from issuing judicial advisory opinions. In commenting upon this most revered prohibition, Chief Justice Earl Warren noted: “When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III.”[1] Continue reading →


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