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My Take: Supreme Court Justices are Human and Affected by Incentives

March 28th, 2012 · No Comments · Economics

It appears that Obamacare is facing an uphill battle in the Supreme Court:

LA Times: Supreme Court greets healthcare mandate with skepticism

Chicago Sun Times: Justices’ queries could signal trouble for health-care law

CBS News: Supreme Court majority skeptical on health care law

Washington Post: Supreme Court expresses doubts on key constitutional issue in health-care law

While unconstrained thinkers like Nancy Pelosi find the notion of a constitutional challenge laughable, the concept of the commerce clause having limits seems logical to this person of constrained vision.

A few evenings ago I mentioned to some friends one other reason I felt Pelosi was off-base, and that Obamacare might be in trouble: Incentives. Imagine that you are a Supreme Court justice. Does it seem rational (given how the constitution is written) that you would take a position that would result in a significant reduction in your ability to direct future outcomes? Why would you rule that the commerce clause has no limits? Seems to me that would just mean you would rule yourself into irrelevance.

You don’t need to be a professor of constitutional law at Harvard to predict that Obamacare and the SCOTUS might be on a collision course. In fact, it may be best if you’re not so academically immersed.

As Charlie Munger says:

“Never, ever, think about something else when you should be thinking about the power of incentives.”

Related: Sowell refers to judges and incentives here.


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