There’s an old saying in sports: “That’s why you play the game.” You might think you know what’s going to happen. You might be sure you know what’s going to happen. But until the game is played, you just don’t know. Just ask the 1980 USSR Olympic hockey team. When I read yesterday’s momentous Supreme Court decisions, I thought of a legal corollary to the athletic rule: “That’s why you litigate the case.”
If you’d told me six months ago Justice Sonia Sotomayor would join all eight other SCOTUS justices in ruling that the City of Philadelphia discriminated against Catholic Social Services (CSS) when it punished CSS for refusing to certify same-sex couples as foster parents, I’d have laughed. The very thought was absurd. But that’s why you litigate the case.
If you’d told me six months ago that Justice Amy Coney Barrett would help save Employment Division v. Smith—the much-maligned 1990 SCOTUS decision that dramatically curtailed religious free-exercise rights—I would have been surprised. Many others would have been shocked. But that’s why you litigate the case.
And if you’d told me six months ago that SCOTUS would once again uphold Obamacare, this time by a supermajority of 7-2, I would have … no, wait. That’s exactly what I thought would happen. I’m mildly surprised at the reason the court upheld Obamacare, though. That’s why you litigate the case.