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.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.
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.
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.