Now that I have the benefit of a long time’s reflection about, and critical distance from, Thursday’s decision (insert appropriate emoticon here, to signal that I’m aware of the funny-absurdity of four days being a “long time” in blog-world), a few thoughts about the ACA cases, and the Chief Justice’s opinion in particular, are starting to come together.
First, I am surprised and (maybe naively) disappointed by the almost-Orwellian “two minute hate” (which, I suppose, could go on longer) that has erupted in the world of talk-radio and in sectors of the right-leaning blogosphere towards the Chief. One would think he’d suddenly become an amalgam of Bill Douglas (or maybe David Souter) and Bill Ayers, this former law clerk to Justice Rehnquist and lawyer for Ronald Reagan. (I heard a radio guy say, “I knew it all along, this guy is no conservative!” But this, of course, is insane.) All this because he didn’t vote to strike down a law that (a) remains repealable, if it’s so bad, and that (b) most people — including some who are committed to judicial enforcement of the Constitution’s structural features — thought until recently was, even if seriously wrongheaded, probably constitutional under the relevant precedents? And, apparently, the fact that he somehow got two “liberal” justices to sign on to what I think is the first decision since South Dakota v. Dole to put any teeth in the “there are limits to the federal government’s ability to regulate-by-spending” idea (an idea that is, as I’ve argued, essential to any meaningful “federalism revolution”) seems, in these quarters, to count for nothing.
Second, it is pretty much universally believed (see, for example, Jessie Hill’s recent post), so far as I can tell, that the Chief Justice’s argument that the mandate may be regarded, for constitutional purposes, as a “tax” — not because it obviously is one but in order to save a major statute enacted by the Congress and signed by the President — is glaringly unconvincing, and that the Chief embraced this argument for “political” reasons. Read More »