To the Editor:
In December 2000, five Republican appointees to the Supreme Court, with George W. Bush leading Vice President Al Gore in Florida by a few hundred votes, ordered Florida not to do a statewide vote recount. That decision guaranteed a Bush victory.
Alan Dershowitz, our summer resident, gave a talk here some months later, in which he posed what he called the “shoe on the other foot” question. Suppose Mr. Gore had a lead of a few hundred votes, and Mr. Bush had been asking for a recount. Would each and every one of those five Republican justices have then voted to deny a recount?
Mr. Dershowitz thought not.
A “shoe on the other foot” question can also be asked about the recent Supreme Court decision, in which Obamacare was upheld only because Chief Justice Roberts defected from his Republican brethren on the court.
Suppose Mitt Romney had won the Republican nomination in 2008 and gone on to win the presidency. Although admittedly an implausible scenario, suppose that President Romney – in a fit of rationality – had decided that what was good for Massachusetts was also good for the nation. Suppose President Romney had proposed, and induced Congress to pass, a health insurance bill which included the same individual mandate, with a tax penalty for non-compliance, that he put into Massachusetts law when he was governor of this state. If that bill had come before the Supreme Court, as the product of a Republican administration, would each and every one of the four Republican justices who decreed the mandate to be unconstitutional have reached the same decision?
Those who encounter Mr. Dershowitz on the Vineyard this summer might ask his opinion.