SCOTUS Ruling: Bring on Kate Smith & Reactions UPDATED

:::Welcome Instapundit readers::: Please check out my update, which wonders whether Obama just got waved on. And thanks, Glenn Reynolds!

- – - – -

I am amusedly watching the reactions of the SCOTUS ruling on Obamacare — where yesterday’s “extremist activist court” is suddenly a model of humility and judicial restraint — and remembering this piece Reason put up yesterday, and I’m thinking of Kate Smith who would sing, “what a difference a day makes…24 little hours…”

If you’re looking for reactions, Instapundit is the place to go; he has rolling updates and a lawyer’s eye for grabbing the shiniest nuggets as they fall.

As usual, and I don’t know why it needs to be this way, but it really is “as usual” some Democrats cannot manage grace in victory. Ever.

If you want intriguing possibilities, go to Volokh, where David Bernstein asks: Was Scalia’s Dissent Originally a Majority Opinion?:

Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds…?

We’ll never know that one.

Meanwhile Law Prof Ann Althouse has a long and thoughtful exposition of Roberts’ opinion and a segue into Scalia, as well.

Mitch McConnell: But it was not sold to us as a tax. Gotta tell you, that line is not a good one. Sounds both whiny and impotent.

Andrew McCarthy: We’ve accepted the left’s flawed premise

On a day of rising passions, Deacon Greg looks to our newest American Venerable who said, “It is very well to sing ‘God Bless America,’ but how can He bless us if we hate?”

The Catholic Bishops, understanding that the HHS Mandate fight — and the abortion provisions within the plan — must still be addressed pleas for some repairs

Ed Morrissey: So, what now?
. Ed reports that the decision has been a boon for Romney’s war chest, but I expect it will be for Obama’s too. He’ll see a bump and an increase in funding as those who were disheartened find new energy.


If you want a combination of lunacy, sorrow and ugliness, just stick to the twitter feeds. Even they, though, are better than

Over on Facebook, Brandon Vogt asked people to give a reaction to the ruling in five words. I did not –as some might have guessed — choose “the king is a fink”. Rather I chose to take the long view and quote Julian of Norwhich: “All shall be well. Amen.”

All shall be well, and all shall be will, and all manner of things shall be well.

UPDATE: Via a friend who sent me Ed Henry’s Twitter timeline:

Even more from CJustice Roberts: “It is not our job to protect the people from the consequences of their political choices.”

Also, Jay Cost says whether this is a “win” or “lose” depends upon what you’re seeking:

Politically, Obama will probably get a short-term boost from this, as the media will not be able to read between the lines and will declare him the winner. But the victory will be short-lived. The Democrats were at pains not to call this a tax because it is inherently regressive: the wealthy overwhelmingly have health insurance so have no fear of the mandate. But now that it is legally a tax, Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.

Well, as Glenn points out a tax repeal can’t be filibustered. Interesting times ahead. Is it possible that Roberts, concerned by threats from the left that they would de-legitimize the court if it struck down Obamacare, reasoned as he did to both give the GOP a workable means of repealing the thing through legislation while also utterly defanging those threats? After all, if you look at the people screaming about the court yesterday, they’re all purring like kittens on twitter, and calling SCOTUS “humble” and “judicious.” There’s no more talk of “partisan, activist judges” today.

Are the Dems and the press going to wake up in the middle of the night, think about that and cringe?

Hey, anything is possible at this point. The Bird is the Word!

UPDATE II: Ezra Klein, The POlitical Genius of John Roberts

About Elizabeth Scalia
  • EBL
  • David K. Monroe

    Well, McConnell’s line may sound whiny, but I sure do think it’s important that the “it’s a tax” issue came up time and time again, and people were roundly scolded for trying to call it a “tax”, and yet now it’s been upheld by SCOTUS on the basis that it’s a “tax.” If they’d have called it a tax when it was being debated in Congress, would that not have affected the final vote? I’m sure it would.

    It seems to me that now the Federal government can now tell us to purchase something they want us to have and fine us if we fail to, and they can switch onerous and uncomfortable demands in legislation from the Commerce Clause to the power of taxation depending on whichever works. It’s abominable.

  • Kevin

    I agree that something strange definitely happened. If you read the dissent early on you read that the principle of limited federal power “carries the day” here. That is the language of a majority opinion, not a dissent. The rumor is that Roberts buckled under the weight of becoming a pariah on the DC cocktail party circuit or something similar.

    It is a very sad day for the United States. The government now has precedent for taxing everything we do, and don’t do, including as someone recently noted, how many children we have. This is not the country I grew up in.

  • Molly

    No way. Elizabeth’s got it right. Maybe I’m being dramatic, or hoping too much, but I think CJ Roberts may have just pulled off a miracle: saved face for the supreme court (which was in the best interest of EVERYONE, not just one side or the other), embarrased Obama and gave his opposition tons of ammunition, gave the GOP a filibuster free road to overturning the thing, scolded lawmakers from both sides of the aisle, or should I say spanked them, making them take responsibility for themselves (GOP: You let this go through I’m giving you a shot at redeeming yourselves and DEM: now you have to vote to overturn your own “baby” or vote to uphold a huge middle class tax increase), and said to the public “wake up, the elections coming up, it matters”, essentially returning the “power to the people” if you will. It’s back in our court now and we should’ve been paying attention in the first place. Granted, if this was his thinking, it’s a gamble, and should he have taken the risk? If the right people get in office though, it will work, and will work a LOT better than SCOTUS just overturning it. Of course, he could’ve just been bowing to the pressure to not be a “political activist” court, but I’m willing to give him the benefit of the doubt.

  • Pingback: Did Roberts just give Obama the bird?

  • David K. Monroe

    Well, I’m no expert but it seems to me to be a very dangerous political game. I thought it would have been bad for the SCOTUS to remove the mandate and uphold the law (as it’s not the job of the court to “fix” laws), but this seems even worse. A terrible precedent.

  • David K. Monroe

    Also, I think the problem here for the Republicans is similar to the problem Elizabeth noted with McConnell’s statement – When Republicans come out full-bore in favor of overturning Obamacare, they are going to seem whiny and petulant sore losers. Passed by Congress, signed by the President, upheld by the Supreme Court, and now the Republican crybabies want to erase it because they didn’t get their way. That’s the spin that’s coming and it’s not going to make Republicans look attractive.

  • Pingback: Instapundit » Blog Archive » FOLLOWING UP ON MY MARBURY OBSERVATION FROM THIS MORNING: Obama Wins the Battle, Roberts Wins the W…

  • Andrew

    So here’s a rhetorical question – why aren’t the libs (BO, Pelosi, Reid et al.) kissing George Bush’s behind for his appointment of Roberts???? Bush has saved the center piece of BO’s presidency via The measured, humane, socially just Chief Justice Roberts.

  • DonM

    I would hate to play chess against Chief Justice Roberts. I can just imagine building my strong pawn center as he puttered about the edges, and then have it suddenly disassembled. A brilliant hypermodern response to Obama’s modern politicization of the judiciary.

  • Pingback: Datechguy's Blog » Host of DaTechGuy on DaRadio on WCRN, still Catholic and Still with Fedora (also featuring Roxeanne De Luca!)

  • EBL

    I am a wee bit less sanguine than Professor Reynolds over this, but I think he and Slate are right about what John Roberts was upto. That does not mean I have to like it.

    As for Democrats not being gracious, my, what else is new? They get a big win and they manage to lessen it by over reacting like fools. All the anger on the right is almost all directed to John Roberts.

    [See this also: - admin]

  • EBL

    I guess we can blame Bush for this!

  • Pedant

    Not to be too picayune about it but wasn’t it Dinah Washington who sang “What a difference a day makes.” LOL

    [Lots of singers covered that song. Kate Smith wounded my ears the worst -admin]

  • davisbr

    Molly @June 28, 2012 at 6:42 pm says:
    “No way. Elizabeth’s got it right. Maybe I’m being dramatic, or hoping too much, but I think CJ Roberts may have just pulled off a miracle:”

    You’ve articulated clearly what I’ve been mulling over & discussing with my wife since my fury somewhat abated. Thanks.

    (My first impulse was Gun? – Check. Ammo? – Check. But it’s since stabilized to Vote? – Check. Tar? – Check. Feathers? – Check. …with a final nod to: Passport? – Check. if this doesn’t get rationally worked out in the body politic.)

  • physics geek

    Nice graveyard some of y’all are whistling past. That some are trying to spin it a la Hugh Hewitt is ridiculous, yet unsurprising.

    Will I eat my words if the spin becomes reality?Yeah, and gladly. However, I see this as a clusterbomb on our liberties, one that in all likelihood cannot be undone, or will only be undone at an enormous cost.

    [Is Ezra whistling, too? -admin]

  • DonM

    Obama’s tax increase on the unemployed was upheld.

  • Rich K

    I wonder anyone knows how many folks will pass on the 10k a year plans, take the 800 c note penalty and pocket the difference for a ,Oh lets say, decade or so that they are healthy.Im 55 and never needed HC insurance and boy howdy I am going to sure as heck put it off now that I cant be refused. Change it or kill it and make me pay for my folly, the one I havent paid for yet.I dare ya,Im bad and need to pay. Is this sarcasm or memorex?

  • Manny

    Frankly this is an outrage. The idea that freedome exists has been proven to be a fallacy. Under the commerce clause, the government can do anything it so wills. How about it mandate everyone own a gun and if you choose not to own one you will have to pay a tax.

    I think I’ve lost whatever patriotism I once had.

    [Manny, read the post about the bird. It seems to me the Roberts court has returned the issue to the people in an election year. System worked. -admin]

  • Spade

    You know, reading this line from Robert’s decision: “The Federal Government may enact a tax on an activity that it cannot authorize, forbid,or otherwise control.”

    It seems to me that while apparently the Government can’t ban abortion because of Roe v Wade, it would be legal for them to tax it. So…..$500,000 federal tax per abortion?

  • Kevin

    What is alarming and even shocking about the Court’s decision, apart from the fact that it appears that Roberts had an eleventh hour change of heart, is that it upheld the ACA on grounds which the Administration did not argue, and in fact expressly denied, i.e., “it’s a tax.” That’s unusual and very disappointing. The normal course in an appeal like this is that the Court will not help you out and come up with a rationale for supporting your position – - if you yourself haven’t raised it. Much less if you also denied that it was a basis to support your position. I can’t agree that C.J. Roberts was playing a deep blue chess game here given his apparent last minute change of mind. It seems more that he was cowed by Obama’s threats – - yes threats – - to the Court after the disasterous oral argument. Remember when he went on TV and suggested that the Court did not have the power to pass on the Constitutionality of the Act? He warned the Court not to undo his baby. Everyone was shocked at how brazen he was but it appears that he scared someone.

    [A tax repeal cannot be filibustered. The court handed the issue back to the voters and gave the legislature some room to move -admin]

  • memomachine

    CJ Roberts just proved that he can be pressured into deciding however the progressives want.

    That’s a real joy right there isn’t it.

  • Mwalimu Daudi

    “Is it possible that Roberts, concerned by threats from the left that they would de-legitimize the court if it struck down Obamacare, reasoned as he did to both give the GOP a workable means of repealing the thing through legislation while also utterly defanging those threats?”

    No. For one thing, that would suppose the GOP possessed the political will to repeal it, when it is clear they do not (they nominated Mitt RomneyCare, after all). Even for a lousy judge that is too scheming to be credible.

    For another, it ignores the fact that Roberts violated the Constitution when he rewrote the legislation, when only Congress has the authority to do that. It also ignores the fact that in the past Roberts has sided with the Court’s liberals more often that the conservatives. Is it not more likely that since his elevation to the Court Roberts has veered sharply to the political Left (remember Earl Warren), and this is his “coming out” party as a leftist hero? I am confident that time will show this to be true.

    Finally, even if Roberts’ had hoped to silence criticism of the Supreme Court (which I strongly doubt, since there is no evidence that he was concerned about it), he is in for the shock of his life. The Far Left is convinced that their threats and intimidation won the argument for them today. The next time a controversial case comes before the Court the Far Left will go nuclear on Roberts if they have the slightest suspicion about his loyalty. And why not? To leftists it appears to have worked today. Once a coward….

  • Teresa in Fort Worth, TX

    Well, this ought to put a stop to abortions – Congress is going to need every taxpayer it can possibly find to pay for this going forward.

    I figure they’re going to be able to start requiring every woman of child-bearing age to produce AT LEAST 3 children each.

    Should take care of gay marriage as well – they bring nothing to the “future taxpayers” table…..

    Hey, I’m grasping at straws here…..

  • Pingback: Bookworm Room » Congress not only can tax anything that moves, it can tax anything that doesn’t move

  • John

    As far as I can tell, Supreme Court is ruling that it is a tax, its in the legislators power, and the public can spend unlimited amounts of money lobbying the legislator to get rid of the tax (or clearly as seen by Obama on immigration, the president doesn’t have to enforce the collection).

    Its not a win, but further narrowing the commerce clause will keep me in the game.

  • Pingback: Anticipating Heaven

  • Michael Kochin

    The Court just handed the issue back to the Senate, where the Democrats will probably still have a majority.
    Freedom lost, the rule of law lost — bullying, Big Media, and George Soros all won.

    [actually, what this ruling says is, "its an election year...if you seriously believe you are being governed without your consent, then fix that. i think its a good thing. all of our laws are not supposed to be won or lost in courts. voting booths still matter. - admin]

  • jeannebodine

    So let me get this straight because I’ve seen this at 1 or 2 sites this afternoon. The “system worked” when one man, ONE man (because only CJ Roberts actually went along with the totality of the final decision) basically rewrites legislation that enacts a tax via judicial fiat in an instance where the legislature knowingly and deliberately had refused to do so. And in doing so, converts the mandate into a tax by a sleight of hand and fails once again to establish any limit to the power Congress (or the courts) have over our lives. And this is an instance of the “system working” just because we happen to have a presidential election coming up in 2012? (And let’s not forget that close to 50% of the population is on the dole/or receives some sort of federal assistance.)

  • Mike Mahoney

    So its ok that we can be taxed if we don’t participate in commerce. And that’s not a commerce clause function. Ever hear the phrase distinction without a difference?
    Why are there so many who think this precedent isn’t a monster, forever waiting to devour us by means of calling a penalty a tax if we do not do what we are told? Find the limiting principle behind the mechanism? This case set none. This case gave the governent the plan and the green light.
    At best, this is a shinny penny at the bottom of the outhouse pit? People are so afraid of the consequence of saying it like it is, “our limited form of government is undone.” Roberts hid behind an Orwellian skirt. Folks cheer.

  • joannemcportland

    No legislation was rewritten. The mandate is not a tax. However, failing to find that Congress had the power under the Commerce Clause to pass the mandate, the CJ turned to the two other independent schema the Government had argued, one of which was the power to levy taxes. Nowhere was it argued, or sustained in the majority opinion, that the mandate is a tax. However, it was argued that the penalty for not complying with the mandate was so similar to a tax (while not actually being one, which would have removed it from the Court’s purview), especially to taxes levied to influence behavior, such as tobacco taxes, that the mandate could be found constitutional under the taxation powers. Because the presumption, in cases under SCOTUS review, is that laws enacted by Congress are constitutional, if the justices were unconvinced by one argument they were BOUND BY PRECEDENT to give favorable consideration to the others. This should not have surprised anybody. You can hear the CJ leaning this way in his questioning during the oral arguments. You can say that his conclusion was unreasonable, as the dissent did, but it was within his purview and, he believed, his MANDATE. It was not something he made up yesterday afternoon.

  • Manny

    “Manny, read the post about the bird. It seems to me the Roberts court has returned the issue to the people in an election year. System worked. -admin”

    It doesn’t matter that this has been returned to the people. Some things are not left up to the people. Some things are left to the Supreme Court. What do we have a SC for? I can see how some day, perhaps not too far from today, imposing laws restricting freedom of religion will be popular. It’s up to the Supreme Court to uphold the first amendment. Justice Roberts punted on his responsibility and has set a terrible precedent.

    And to all those who said this is a gift to the Republicans in November, there is no guarantee of that. How does this attract any more voters who would have voted against Obama anyway? Nobody. And the Conservative base was already energized. This only energizes Obama’s base. They now have a reason to vote for the socialist.

  • Katherine Harms

    I don’t see how calling this monstrosity a tax helps anyone as long as it remains in force. Every day that it is assumed to be legitimate is another day of entrenchment, making it that much harder to root out if conseratives win in the fall and if newly-elected conservatives do what they were elected to do.
    I also don’t see how upholding a completely unconstitutional law is a win for anyone but Obama. The constitution never ever at any time in any place authorized such a socialist program. The constitution was written to prevent the federal government from doing things like this.
    I can’t share in the enthusiasm for Roberts’ handing it back to the voters. Voters did not make this law. Voters did not want this law. Nobody who voted the law into existence wanted this law, because nobody who voted on it even read it. Every vote whether House or Senate was purely payback for some value received; those votes had nothing to do with healthcare or with the constituents. The people who created it had no idea what they were creating. The court should have declared the law unconstitutional if for no other reason than the fact that Congress did not do its job of representing the people by responsibly evaluating the law (reading and analyzing) or else simply rejecting the law because if it is too much for a Congressman or Senator to read, it is too much to administer.
    We are now in the unenviable position of being on the edge of a very dangerous cliff. If voters reject Obama in November, there is a possibility Congress will repeal this law, but no certainty, and every day it exists, the United States of America governed by the Constitution fades just a bit more. If, God forbid, Obama is re-elected, this country is over. The label “USA” will still exist, but constitutional government will no longer exist. Obama already believes he can simply declare things to be so, and if he is re-elected, we become a complete dictatorship. I would expect if he is re-elected that we will never have another presidential election in his liftime. That is how bad I think this decision of the Supreme Court is.