The biggest loser in this ruling may well have been the remains of the Supreme Court’s dignity. At Hit and Run, Shikha Dalmia pokes through the smoking ruins of the decision to try to make some sense out of it all:
One: We know a ruling is a going to lead to a holy legal mess when it begins like this:
ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion.
Another instance where a ruling began this way was in the 1978 Bakke case. In it, Justice Powell could not convince a majority of his colleagues to sign off on his tortured claim that the University of California could not reject white candidates because of their race. But it could give blacks and other minorities extra bonus points because of their race. He was against racial quotas, you see, but thought racial preferences were just peachy — a distinction that his conservative and liberal justice had difficulty seeing. The upshot was multiple opinions with multiple dissents and multiple concurrences without any clear guidance as to which one was applicable. This has lead to 40 odd years of conflict and confusion in the lower courts that the Supreme Court is still trying to sort out
[. . .]
Three: No one should ever again believe that conservative justices are opposed to judicial activism, preferring, instead to read and apply the law as written, computer-like. Justice Scalia proved this in his ruling in the Raich case when he happily signed off on an expansive understanding of Uncle Sam’s Commerce Clause authority to nullify state medical marijuana laws duly passed by voters just because he happened to disagree with them. Had it not been for his misguided reasoning, ObamaCare’s constitutionality — or lack thereof — under the Commerce Clause would not have even been an issue.
But Scalia at least chose to exercise one of the two options presented to him: uphold or overrule the law as written. Justice Roberts, on the other hand, as many have already pointed out, has rewritten ObamaCare as per his taste. The law itself repeatedly noted that the fine for not purchasing health care was a penalty not a tax, a designation that Roberts accepts in order to determine if the court had standing to rule under the Anti-Injunction Clause (the Clause bars legal challenges to federal taxes before they have gone into effect). But he rejected that designation and redubbed the “penalty” a “tax” in declaring it constitutional.
Update: Ace gets a bit heated about the political switch of opinion on the part of the chief justice:
What galls me is that a majority of the public wanted this overturned — but we don’t count. What counts is the opinion of the elites Roberts socializes with. They are a decided minority, but continue imposing their political will on the nation as if they were a majority.
And the actual majority? The Little People don’t count. They don’t have the right schooling, nor the socialization to truly understand how to best manage their affairs.
I was just reading a bit about the making of The Good, the Bad, and The Ugly. Sergio Leone included a brutal Union prison camp; he noted that there was a lot written about the Confederates’ brutal prison camps (like Andersonville) but nothing about the Unions’ similar camps. The winners, he noted, don’t get written about that way.
Roberts has aligned himself with the elites, who he supposes will be the Winners, and will thus have the final say in the history books about him. And he’s probably right that they will have the final say: Conservatives simply do not have much sway at all in some of the most critical institutions in America. And we’ll continue paying a high price for that until we change that.
Update, the second: Mark Steyn, on the other hand, sings the praises of Obamacare, now that it has hurdled the Supreme Court:
Still, quibbling over whose pretzel argument is more ingeniously twisted — the government’s or the court’s — is to debate, in Samuel Johnson’s words, the precedence between a louse and a flea. I have great respect for George Will, but his assertion that the Supreme Court decision is a “huge victory” that will “help revive a venerable tradition” of “viewing congressional actions with a skeptical constitutional squint” and lead to a “sharpening” of “many Americans’ constitutional consciousness” is sufficiently delusional that one trusts mental health is not grounds for priority check-in at the death panel. Back in the real world, it is a melancholy fact that tens of millions of Americans are far more European in their view of government than the nation’s self-mythologizing would suggest. Indeed, citizens of many Continental countries now have more — what’s the word? — liberty in matters of health care than Americans. That’s to say, they have genuinely universal government systems alongside genuinely private-system alternatives. Only in America does “health” “care” “reform” begin with the hiring of 16,500 new IRS agents tasked with determining whether your insurance policy merits a fine. It is the perverse genius of Obamacare that it will kill off what’s left of a truly private health sector without leading to a truly universal system. However, it will be catastrophically unaffordable, hideously bureaucratic, and ever more coercive. So what’s not to like?
