Other scholars, like Parker, were less dismissive of the arguments against Obamacare. Parker said many scholars and pundits had failed to apply legal realism and forgotten that precedents can be changed. According to him, many of the justices see this case as a quickly receding opportunity.
“If they let this go, I don't believe that they will see any foreseeable prospect of stopping federal expansion,” Parker said.
Though Burt more emphatically defended the constitutionality of the act, he similarly acknowledged that the final decision will be made not by scholars, but by the justices.
“The Constitution is what the Supreme Court says it is,” Burt said. “We'll learn on Thursday if [the act] is constitutional.”
—Staff writer Maya Jonas-Silver can be reached at mayajonas-silver@college.harvard.edu.
—Staff writer Petey E. Menz can be reached at menz@college.harvard.edu.