Tomorrow is the big day in which we learn whether the U.S. Government now rules rather than governs us. If Obamacare is upheld, what remains of the old order of limited government will be swept away and a new regime of top-down technocratic rule will become firmly entrenched, a system that will increasingly become less accountable as boards of appointed experts make the most important decisions for us. If you doubt me, read my analyis of the Independent Payment Advisory Board.
I predicted back in January, that the Supremes would uphold the ruling. Here was the heart of my thinking:
The Supreme Court has vastly expanded the power of the federal government since the 1930s. In so doing, the justices have often based their decisions as much on policy as on law—and then fashioned legal justifications to back up their decisions (which, in turn, become springboards for further federal expansion). Some call this phenomenon “judicial legislation,” but we won’t get into that here. Moreover, the justices generally come from what is sometimes called the “ruling class,”—people who graduated Yale, Harvard, Princeton, etc.—people who have faith in “experts” and technocratic solutions to societal problems. The rulings of the Court on controversial social and political issues often reflect the views of this subset of Americans more than those of the general population (not that the opinions of either should be relevant). While polls generally show a majority of Americans opposing Obamacare, the ruling class tends to support it.
With the above in mind, I believe the majority of the Supreme Court will rule that Obamacare’s purposes are laudable, that universal coverage is equitable and necessary for the country’s future, and that since the mandate is a necessary element of making the new law work, it is constitutional. That may sound like bootstrapping, but there it is.
I have grown more optimistic since that was written. Particularly, I think the hubris and arrogance of the Free Birth Control Rule might have gotten Justice Kennedy’s attention (plus, he’s Catholic) about the depth of raw power Obamacare seizes for the Feds. Plus, the oral argument went very badly for the Obama Administration, not dispositive but an indicator. Plus, the law remains unpopular among we peons whose opinions still count for a little (although that should be irrelevant in a court ruling, but sometimes isn’t). Plus, the political left is in full panic mode. In other words, I am reading irrelevant tea leaves because I am on tenterhooks waiting for the ruling!
My view today? Last January I thought there was a 75% chance Obamacare would be upheld in total. Today, a 52% chance. In other words, I now think it really could go either way.
Meanwhile, the wait is driving some pundits over the edge. For example, Ed Whelan at NRO’s Bench Memos, predicts Obamacare is toast because:
SCOTUS tradition holds that each justice only read one dissent from the bench per term;
If Scalia was dissenting in the Obamacare case, he would have reserved an oral dissent for health care;
Justice Roberts, if in the majority, assigns who will write a decision.
He hasn’t recently authored a case in the March/April batch of cases;
Since the Obamacare ruling is historic, he will write the decision;
It is unlikely that Scalia will vote to uphold Obamacare;
That means Roberts is writing the majority joined by Scalia;
Combine the above, and Obamacare goes down 5-4.
The wait is driving us crazy! Supreme Court, put us out of our misery!