Three on the ObamaCare Ruling

Monday, July 02, 2012

Over the weekend, I ran into three analyses of the Supreme Court ruling that upheld ObamaCare last week. Put together, they underscore the importance of opponents of ObamaCare working to overturn that horrendous legislation on "appeal" in November, while also providing us hope for success.

To get the least hopeful article out of the way first, I note a CBS News report to the effect that Chief Justice Roberts was at first in favor of overturning the law and declaring the individual mandate unconstitutional, but that he changed his mind. It's not the fact that he changed his mind, but why he did so that gives me pause:

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court - and to Roberts' reputation - if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.
I can see crafting a ruling in certain ways to protect the reputation of the court, but only in response to what a reasonable person might infer. Attempts to bully the court, such as Barack Obama's before the ruling almost always demand quite the opposite response.

And then there's the whole matter of catering to the whims of the leftist establishment. Consider the following interesting exercise: Take note of a few leftist commentators who are singing Roberts's praises now and watch them change their tune the moment Roberts sides with a majority decision they don't like. If Roberts was merely attempting to curry favor with the leftist establishment, his reversal will prove fruitless to the extent that that was his motivation.

I hope Roberts was less worried about pleasing the unpleasable left than attempting to be clever. Robert E. Malchman, warning (via HBL) that Obama's victory may prove "pyrrhic", notes that "Roberts accomplished numerous, subtle victories for conservative Republicans", not the least of which include helping the GOP paint the Democrats as the party of taxation and angering conservative voters.

Political handicapper Dick Morris also uses the term "pyrrhic" to describe Obama's victory, but doesn't qualify the term. He notes that polling has consistently indicated that within the public, there is a 55-40 percent split between people who oppose vs. people who support ObamaCare. Like Malchman, Morris sees the ruling as beneficial to the GOP come election time, and even notes some immediate good in the ruling:
The rejection of the Medicaid expansion is huge. This mandate - which would have quadrupled the Medicaid population in some states (like Texas) would have forced all states to pass income taxes and required those with them already to raise them substantially. It required coverage of about a quarter of the country under Medicaid, something the states cannot afford. Some saw it as a way to equalize the north and the south in taxes, eliminating the competitive advantage the south has long enjoyed.
I hope Morris is right. And perhaps advocates of individual freedom will even turn the fact that we may well have a "wobbly" Chief Justice to contend with to our advantage.

-- CAV


RussK said...

I don't like the idea of a member of the supreme court, let alone the Chief Justice, playing politics. If Roberts did in fact change his vote to provide ammunition to an upcoming election, then politics is all it can be called. Not only would such an action deal a blow to the integrity of the court, but who knows how damaging Roberts' decision of calling a penalty a tax will have in future rulings. There are years of precedent regarding commerce clause abuse, has Roberts just ushered in a new form of rights violation? If he didn't want ObomneyCare, he could have ended it by joining the justices who voted against it.

Steve D said...

Except long after Obama is gone, Obamacare will still be with us. I think at best if both of those articles are completely true, Roberts may have bought us all only a few years.
The country won’t be saved for long by crass political maneuvering pitting branches of the government against each other and substituting a fascist medical system for a socialist one.

Gus Van Horn said...

Thanks for your comments. To be clear, I did NOT mean to imply that I supported, in any way, Roberts's upholding ObamaCare for any reason. There are politically savvy rulings, such as Marbury vs. Madison, but I don't regard this as one of them, considering that whatever good there is has been severely undercut.

Jim May said...

The conservative/libertarian reactions going on about the Commerce Clause remind me too much of the whistling-past-the-graveyard confidence among some associates of Hank Rearden's in getting the Equalization of Opportunity Bill repealed.

The *visual* I get out of that is a political cartoon of Chief Justice Roberts locking a door marked "Commerce Clause", and the door is in a wall full of huge holes marked "Slaughterhouse cases", "Kelo" etc. and a brand-new, extra-big one marked "Taxation Power", with a giant creatures outside, named "Government", grinning slyly.

I wish I could draw worth crap.

Gus Van Horn said...

Too bad Cox and Forkum aren't still making political cartoons...

Steve D said...

‘I did NOT mean to imply that I supported, in any way, Roberts's upholding ObamaCare for any reason.’
I don’t think anyone could ever mistake you for a supporter of ObamaCare, Gus under any circumstances but do think it’s human nature to search for a silver lining. There is really nothing in those links I really disagree with. Roberts may have been attempting some type of booby trap for the liberals and he may even succeed. On the other hand, it is also possible he may believe sincerely everything he said. We may never know.
My point however is that the best case scenario is that Roberts traded possible short term advantages for definite long term bad consequences. Here I throw up my hands in exasperation and say: Isn’t that just like a typical conservative!”
But if he did buy us some time, we owe it to ourselves to use it wisely.
In most European countries, socialized medicine is nothing more than a tax. A free system exists beside it, for those who can pay. (Only a few countries like Canada, Cuba, and North Korea completely outlaw private medicine). I can think of no reason why the present judges would deem a fully socialized system of medicine unconstitutional. In fact based on the recent decision it seems more constitutional that the fascist abomination that Obama gifted us.
I often wonder what would happen if the people who wrote the constitution where brought forward in time and invited to be Supreme Court judges and then asked to judge on some of these cases. I’m sure their responses would be enlightening (and possibly hilarious).

Gus Van Horn said...


I'm not worried that regular readers would make such a mistake, but your and RussK's comments caused me to realize that I might have looked, to a reasonable passer-by, like I was happy with Roberts's ruling/looking too hard for a silver lining. So I took the opportunity to be clear that I think it's a bad ruling.