I try not to blog about issues that virtually everyone is writing about — what’s the point in pouring a bucket of water into a river? — but there’s so much commentary out there, and frankly I can’t resist reading some of it, that I wanted to highlight some of the more interesting remarks.
If you’re interested in my thoughts, watch this LXBN TV interview:
(For the curious: I am sitting in our firm’s mock courtroom, the one with the detailed jury painted on the wall that includes the famous, like Benjamin Franklin and Abraham Lincoln, and the infamous, like Charles Manson and Tony Montana.)
First, who won their office bets? The Court affirmed the constitutionality of most of the Act 5-4, with Chief Justice Roberts voting with the liberals. Robert Reich called it the closest, predicting 6-3 to uphold the Affordable Care Act, including Roberts. Jack Balkin said in May that Obamacare was plainly a tax, and similarly thought Roberts and Justice Kennedy would go that route.
Second, so who won? In the little picture, the ACA was held to be constitutional. In the big picture, there’s a lot of disagreement. Maybe liberals won: at Balkinzation, Joey Fishkin calls it “A Massive Victory for Liberalism,” and at the Wall Street Journal John Yoo calls it “the greatest expansion of federal power in decades.” (Yoo must have forgotten how he literally wrote the memos authorizing torture on detainees and permitting warantless wiretapping of US citizens, which are easily greater expansions in government power, but I digress.) Maybe conservatives won: Ezra Klein reports Randy Barnett saying “we won” on the arguments but not the result, though Michael Walsh says conservatives need to stop kidding themselves.
The supposed “must-read” is Jan Crawford’s report on Roberts switching his vote during deliberations. Lawrence Solum had already suspected that based upon the opinion’s wording, as had Scott Lemieux, who is dubious about the new line that Roberts was swayed by the “liberal media.” The real “must-read” is Popehat collecting the most hysterically overwrought reactions by people. It’s a good thing the winner’s jaw-dropping reaction was followed by the affirmation, “no exaggeration,” otherwise we would all be certain that no one could possibly believe such ridiculous hyperbole.
[Update: one point I mentioned in my interview on July 2 is that the decision could strain relations between Chief Justice Roberts and the other conservatives. On July 8, Jan Crawford reported that was indeed the case.]