Ronald Dworkin has published a New York Review of Book Essay on the Supreme Court’s health care decision. The essay has all of the characteristics of the typical Dworkin NY Review essay: it stakes out the liberal position, argues for it with power and verve, but in the end is often to me unpersuasive.
Dworkin spends some time criticizing Chief Justice Roberts’s opinion. As readers may remember, I am no friend of his opinion, but I don’t agree with much of Dworkin’s criticism. Let me just discuss one issue. Dworkin is upset that Roberts first concludes that the Congress does not have the power to impose the mandate under the Commerce Clause before concluding that Congress does have the power to do so under its Taxing Power. Dworkin writes: