In his Obamacare ruling, John Roberts called the president a tax-and-spend liberal
And then there was a decision. At 10:06 a.m. ET on Thursday morning, the dapper and erudite John Roberts, the George W. Bush-appointed chief justice of the Supreme Court, announced the court's decision to uphold the Obama health care law. Roberts broke ranks with the other Republican-appointed justices and voted against invalidating the individual insurance mandate.
So it was a double negative: The Court would not deem Obamacare not constitutional.
Come on: Who can quarrel with that, unless they've got a weird jones for 17th-century tax-law arcana? Yes, by 2014 everyone will have to buy health insurance--some kinds will be newly subsidized--or pay at least 1 percent of their income in a tax penalty, rising to 2.5 percent in 2016. But also, adults and children with preexisting health problems will no longer be discriminated against. People with chronic conditions who have been denied health care will be able to get it. And by 2015, doctors will be reimbursed for the value of a patient's overall care, and not just for specific, itemized procedures. That's just gotta create incentives for better primary care.
But it isn't sick people or doctors who are prognosticating and pontificating most stridently about the 5-4 decision. It is proceduralists and pedants and ideologues, the awesome blog-commenters that can only be called SCOTUS junkies.
Basically, they didn't want the anticipatory excitement to end. There had been bookmakers everywhere. InTrade had already put the chances at more than 70 percent that the mandate would be struck down. Most Constitutional scholars said the same.
But then there was SCOTUSblog, where, as of Wednesday, Tom Goldstein, known to his followers by his first name, went boldly on the record as saying he thought that the Court would not invalidate Obamacare. And he was right.
In the run-up to the decision, online Americans roused themselves to the kind of forensics and textual exegesis that Web 1.0 was made for. SCOTUS junkies read the briefs. They read the Commerce Clause. They read various founding documents about taxation. And they fought tooth and nail—or rather hashtag and emoticon—to figure this out.
But nobody except Goldstein, a Washington attorney, really called it.
Chief Justice Roberts prolonged the suspense by starting off his decision by calling it unconstitutional for the federal government to require people to buy health insurance. As Republicans in the room reportedly looked relieved, he seemed to savor the fake-out, waiting a full five minutes before turning to say that it is constitutional for the government to levy a tax on people who do not buy health insurance.
In Supreme Court decisions, as in kids' math problems, you have to show your work. And Lyle Denniston on SCOTUS blog pointed out that the Court's decision wasn't based on the administration's favorite principle--that the president's signature health care reform was not a "tax."
What we ended up with, Denniston wrote, was a resolution that a Democratic president could and would tax people to pay for a New Deal-inflected program.
For all the online suspense, that's not much of a real-world climax.