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.
Displaced Husker 
Nice article. The Bozell quote you provided- “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.” – perfectly illustrates one of the advantages of lifelong terms for SCOTUS judges. Roberts is free to rule as he sees fit with out having to worry about his reputation.
Absolutely. It’s become almost a reflexive response for conservatives (in recent years — as far as I can tell) to utilize (or seek to utilize) progressive strategies such as ending lifelong tenure and getting rid of the filibuster — when it suits conservatives. That’s wrong on principle. And it destroys the Republic.
I think you are right to take the long view on this. I do think we (meaning the People generally) were let down by all 3 branches of government on this one though (I have a post on this scheduled for tomorrow morning). But there is some good news as you point out – the Medicaid portion of the ruling and the constraints put on the broad reading of the Commerce Clause (see George Will’s column yesterday).
As a conservative, I expect to be let down by people in government. Humans are imperfect by nature, so what else should we think is going to happen?
That’s why it’s important to focus on building (and maintaining!) institutions that minimize the worst of human failures while still allowing for a political society. That’s what conservatism means to me — and I hope it will come back into fashion in due time.
Until then, we just have to minimize the damage — I hope.
Well said.
How is the filibuster part of the “founding father’s vision”? It’s just a rule set up by the Senate. Apparently the possibility of a filibuster occurring didn’t exist until 1806, and wasn’t used until 1837.
http://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate
I seriously doubt the founding father’s envisioned our current situation in which essentially 60 votes are required to get anything passed in the Senate.
Thanks for commenting! My wording could have been more precise. Naturally, the filibuster hasn’t been around since the Constitution’s original passage.
What I meant to point out — however ineptly — is that the Senate is intended as a deliberative and politically removed body. Until the 17th amendment, Senators were selected by their state legislators instead of direct elections. That change, in my opinion, is for the worse. Instead of Senators directly tied to the governments of their respective states, we have what amounts to slightly more politically secure members of the House.
That’s why I support the filibuster. It’s an imperfect — but vital — part of ensuring we remain a Republic.
The Senate’s electoral cycle (1/3 every two years) was the check on majority tyranny, not the selection process. This is what Jefferson’s allegory about cooling tea in the saucer was about. The Founders saw the Senate as a majority-rule body (hence the VP is the tie-breaker), not a super-majority one. The selection process was designed so that the Senate would represent the state’s long-term interests, which the Framer’s thought was best expressed by the legislature.
jgreendc: Whether the filibuster protects the Republic or is a tool of tyrants is a matter of context. If it is used to stop a bill that takes advantage of short-term political forces, then that’s probably for good for the Republic. If it stops a bill that has majority support across multiple sessions of Congress, it is probably bad for the Republic. If your definition of what is good or bad for the Republic depends on the outcome and not the process, then I think your definition is wormy.
Joe
Thanks for your comment. Frankly, I consider the filibuster (in today’s form) an appropriate swap for the 17th amendment. If we still had Senators appointed by their state legislatures, it would be less necessary. But they’re not — so I believe it is.
And per my view of the Republic, my goal is to prevent another form of tyranny — that of what Tocqueville described as the “tyranny of the majority.” Preventing narrow majorities from steamrolling legislation that dramatically changes our social contract is the intent. I’m fiercely against chasing outcomes (Scalia style) and saying “the process doesn’t matter.” It does. But part of that process is protecting the process itself. Does that make sense?
It’s an interesting argument, but I think it lacks foundation.
There was popular selection of senators (by referendums, primaries, or other means) in 29 states before the 17th amendment. Prior to that the public’s direct influence on the selection process was often felt. For example, the Lincoln-Douglas debates were campaign events for state legislative candidates who had committed to one or the other for Senate. In other cases the public’s interest was not felt (i.e., the documented and undocumented cases of bribery and other graft), and probably not the state’s either. So the idea that the 17th amendment was a demarcation that made the filibuster more important doesn’t seem sensible to me.
Additionally, the Senate can pass anything by a majority if the Senators are willing to explain it to their constituents, and there are many other strategies to obstruct procedures if the filibuster did not exist (my friend Greg Koger explains this in his book). So it isn’t a particularly powerful means of protecting the Republic, just an annoying one at this point.
Lastly, the filibuster is not just an impediment to passing progressive legislation (which is I think what you mean by “tyranny of the majority”) it is a tool to force such legislation with majority support onto the calendar. McCain threatened to invoke cloture on everything the Senate did unless his campaign finance bill (which had persistent majority support) was brought to the floor.
I’m not aware of any legislation that had majority support in the Senate in the last 50 years that would “dramatically change our social contract.” Perhaps that’s the source of any disagreement we might have. While I may think DOMA was bad policy, and you may think PPACA was bad policy, our social contract would be very fragile indeed if these relatively minor changes to our laws represented “dramatic changes.” We would have never survived the civil rights/women’s/taxpayers’/religious right movements, yet here we still are (collectively still fighting over those movements :-)).
Joe
Thanks for the follow up comments.
Unfortunately, I’m battling a few deadlines at the moment, so I can’t give your thoughts the fleshed out reply they deserve. I do believe you’ve given me a topic for my next blog post.
Thank you, sir.
I have a question. How did you embed your tweet into this post?
On an individual tweet, click “details” and then “embed.” It will provide a code that you insert into the HTML of the post. Works like a charm for me.
thanks man! that is a cool trick, I had no idea that was possible.
“Preventing narrow majorities from steamrolling legislation that dramatically changes our social contract is the intent.”
Except, I guess, when the Supreme Court appoints a President who then chooses to interpret his narrow “victory” as a mandate to dramatically change our social contract.
I should note that the Bush tax cuts were put through via reconciliation. But as someone who was 11 when this went down, my memories are patchy on the subject.
I’m afraid the commerce clause limitation as poisoned chalice is a essentially a bit of rationalisation since it’s effectiveness is entirely dependant on circumstances and the make up of the court. Even the Medicaid ruling isn’t likely to make much difference in the long run since it involves states rejecting a host of incentives that are going to benefit their own residents. When civil rights and great society legislation was passed in the sixties many states (in roughly the same places as now) said they wouldn’t implement it but all ultimately did. And the claim liberty and responsibility always fail in popular democracy is preposterous….ask the British. Despite all the noise and smoke this is largely over. Even if Obama isn’t re-elected in November, and the odds are he will be, this will be next to impossible to reverse without control of all branches of govt and a supermajority in the senate particularly since the entire medical establishment and industry are now essentially going to fall in behind the law.
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Indeed – I took the “long game” approach in my post of today: http://rapsheetblog.wordpress.com/2012/07/01/roberts-and-ginsberg-strange-bedfellows/.
I agree. Although this seems like a loss for conservatives everywhere, Justice Roberts was just doing his job, so we can’t really be mad at that. However, I think in the long run, the economics of the law will cause more harm than good, especially when states with already stressed budgets, such as Alabama and Mississippi, will have to fit larger bills for their Medicaid programs.
I think it will ultimately be a wash for states like Alabama and Mississippi, which already receive (correct me if I’m wrong) significantly more in federal dollars than they pay in taxes. Generally, some of the ideas in the law are quite good — and I don’t think it’s in anyone’s interest for the GOP to pursue a “full repeal”. Far better to trim back the programs that are unpopular (and don’t work) and to behave conservatively instead of in a reactionary manner. But that might be a high bar.
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