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Hate the Decision, Love the Response, Tip of the Cap to Justice Kennedy



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That sums it for me.

On the substance, I’m with VDH, Ramesh, Rich, et al. Roberts’s decision is no conservative Trojan Horse. Any limit it established on the Commerce Clause is more than overpowered by its chilling finding that “the Constitution does not guarantee . . . individuals may avoid taxation through inactivity.”

Nor do I see the opinion as a chess move in some long-term gambit. I’m more sympathetic to the view that Roberts felt the pressure, as guardian of the institution, to rule narrowly in a way that would split the difference and protect the Court’s legitimacy. But if he felt such pressure, that in itself is depressing, evidence that the political Left’s sustained attack was effective.

Nor is the decision as it exists the only avenue Roberts had to rule narrowly. Instead of rewriting the statute to save it, he could have struck down the mandate but declined to follow the dissent in striking down the whole of the law. Or he could have struck down the mandate under the Commerce Clause, but written the opinion in such a way that made clear that if Congress went back and passed it again, this time as an explicit tax, it could survive constitutional muster. Not for nothing — the latter would have the benefit, for conservatives, of being politically impossible.

But while I hate the decision, I am, for lack of a better word, proud of the Right’s response to it. There have been no notable conservatives questioning the Court’s legitimacy, no conspiratorial talk about “coups,” no plans to Occupy SCOTUS or impeach Roberts. Indeed, some of the brightest minds on the Right are dedicating column inches today to defending the man’s honor. I trust you all realize that nothing like this would have been possible on the Left. As I joked on Twitter, I’d be fascinated to read prominent liberals defending Justice Kagan for joining the conservatives to overturn Obamacare, if either were conceivable.

Last, a note of appreciation for Justice Kennedy, who so often frustrates. Here, he kept true to what his intellectual biographer Helen Knowles insists is the slogan of his jurisprudence: “The tie goes to freedom.” Indeed, when I read the dissent (which is quite conservative and has Scalia’s fingerprints all over it) I was downright shocked that Kennedy signed it as-is, without filing a more cautious dissent of his own. Hopefully this is a sign of a shift.

Still, I think 20 years from now, I’ll wake up in a flop sweat at 3:00 a.m., and whisper to myself “My God, Anthony Kennedy was willing to blow the whole thing up. . . .”

There sat the Chief Justice, last to vote as is his prerogative, with four Justices willing to strike down the entirety of the Affordable Care Act. And he couldn’t pull the trigger.



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