In the seventh (seventh!) hour on the third (third!) day of Supreme Court oral argument over the Patient Protection and Affordable Care Act, when just about everyone seemed mentally and physically worn out, there was a moment. It was a moment that captured the competing worldviews at stake in this titanic legal battle. President Obama’s Solicitor General, Donald Verrilli, seemed to finally have found his stride. Without coughing, or stammering, or gulping down a glass of water, Verrilli delivered his concluding remarks to the Court. “In this population of Medicaid-eligible people who will receive health care that they cannot now afford,” said Verrilli, there will be millions of people with chronic conditions like diabetes and heart disease. And as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them, and have the opportunity to enjoy the blessings of liberty.” Verrilli was, in a final effort to woo the Court’s conservatives, alluding to the preamble to the U.S. Constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Though judicial conservatives care much more about the Constitution’s actual text than its preamble, Verrilli doubtless thought he was appealing to the conservatives’ traditionalist sensibilities.
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