Ross Douthat has provided mostly sensible commentary about the Obamacare decision and its fallout: This post, for example, is quite good about the folly of thinking that the details of Chief Justice Roberts’s reasoning provide some hope that future cases will yield big conservative wins. I think Douthat erred, however, when he wrote recently that Roberts’s decision at least has the merit of “let[ting] the two sides keep on playing ball.”
What Douthat seems to mean is that Roberts’s decision lets the legislature set the broad outlines of health-care policy. That was never in any serious question. Chief Justice Roberts has made his ruling, and we are left to try to repeal Obamacare through normal politics. If the conservative dissenters had had their way, and the whole law were struck down, liberals would have been free to get Congress to pass single payer, or the modified version of Obamacare that Roberts blessed. Nothing in the dissent suggests that the justices would have struck either type of law down.
Nobody was ever talking about a judicial foreclosing of legislative choice as sweeping as the ones the Court has worked on abortion or term limits or the death penalty. Roberts should not get credit for avoiding something that was never going to happen.