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Martha Minow, Affordable Convergence: "Reasonable Interpretation" and the Affordable Care Act, 126 Harv. L. Rev. 117 (2012).

Abstract: "The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution . . . ." — Joseph Story (1833). That the Court was sharply divided was not a surprise. The contrasting briefs — including a record 136 from amici — laid out the dispute. Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, and another would entirely uphold the same law; the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world. The unexpected further, controlling opinion authored by Chief Justice Roberts was historic not only in its bottom line (upholding most of the law but under the federal taxing power, after finding no power under the Commerce Clause), but also in its staking out a third position, outside the two warring camps. Leaving to others speculative debate about the motivations and intentions of Chief Justice Roberts, this Comment argues that this third opinion transcended the polarized political debates surrounding the legal challenge to President Barack Obama’s signature domestic policy initiative through analytical convergence, not political compromise. Although pundits called it a compromise, something else was at work. Here, Chief Justice Roberts followed Justice Joseph Story’s view of “reasonable interpretation.” Seeing the decision as one of law, not just of politics, demonstrates the power of arguments and explanations rather than sheer outcomes or advantage. The reasons and interpretations exchanged in this case — not just the votes and the result — amplify the Supreme Court as a symbol of the rule of law. And, because it was a legal ruling, there will be repercussions for legal doctrines and for the actual scope of governmental powers for years to come. Or so I will argue here.