Here’s a capable summary of parts of our on tap discussion the night before the Obamacare decision’s release. As you see, I didn’t protect the result. I came closer than many by calling attention to the fact that the Court couldn’t recommend effectively than the mandate be re-drawn as a tax. So Roberts, to my surprise, did it on his own. But Roberts, as a judge, shouldn’t pay attention to the partisan composition of Congress. He could have recommended that ineffectively, and then it’s up to the people to decide whether to produce a Congress that would make the recommendation effective.
I agree with Jim below that the discussion concerning the constitutionality of ObamaCare should continue. But it probably won’t. Had the Court “gone partisan” 5-4 the other way—had every justice voted his or her constitutional convictions—it, in fact, would have continued. Roberts’ “statesmanship” has the demerit of only seeming to transcend the partisan divide in the country over the meaning of the Constitution (a divide that has many dimensions) in the name of reconciliation, institutional legitimacy, or whatever.
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