It’s been a long day, so I’ll keep this reasonably short.
The ruling itself wasn’t terribly surprising. When it became public that Roberts was writing the majority opinion, I figured it would be to affirm. (He’s one of those less ideological types). So I predicted a 6-3 vote to uphold (proof below — note: tweet was at 8:27 EST)
Just going to toss this out there: I think SCOTUS will uphold the ACA on a 6-3 vote. Alito, Scalia, Thomas dissenting.
— Justin Green (@JGreenDC) June 28, 2012
Despite my political leanings — and general disdain for the ACA — I’m fine with this result. The Supreme Court should be a powerful institution capable of striking down legislation that exceeds the power of the legislative branch. But that’s awfully hard when the process becomes so deeply politicized that even SCOTUS rulings lack public legitimacy.
The decision by Chief Justice Roberts to vote to uphold the law has been harshly criticized today. Brent Bozell, the nephew of William F. Buckley (a hero of mine), didn’t mince words:
“His reputation is forever stained in the eyes of conservatives, and there will be no rehabilitating of it,” Bozell said. “He will be seen as a traitor to his philosophy.”
Harsh words — and they were echoed across the conservative blogosphere and twitter. But with all due respect, this is an overreaction. Today’s decision is far from the desired result for conservatives, but it’s also equally far from the (much worse) alternative. By identifying a limit within the Commerce Clause, the Roberts ruling will go a long way down the road in limiting overreach from the federal government. And restricting the power of the feds to punish states on Medicaid is a rare gesture to the 10th Amendment.
But let’s not kid ourselves. This isn’t the result conservatives wanted. The mandate’s survival — even as a tax — was a surprise to many.
So my advice to conservatives? Play the long game.
Recognize that today’s decision is a clear defeat — but in the short term. Far more important is the long term struggle to limit the expansion of the Washington leviathan. And while a vote to blow up ObamaCare would have felt good today, it’d also spell trouble for valued institutions in the long run. In response to SCOTUS pushback in the ’30s, FDR attempted to pack the court (and nearly succeeded). And today, the calls are back to get rid of the filibuster, which stands with the Electoral College as the last barriers between our Founding Fathers’ vision and popular democracy.
And trust me. In popular democracy, responsibility and liberty don’t prevail. Ask the Jacobins.
So despite the temptation to hammer ObamaCare with budget reconciliation, cool your jets. Lose the battles if it means you may win the war.