Thursday, June 28, 2012

"Obamacare Upheld: How and Why Did Justice Roberts Do It?"

David Cole (The Nation):
So why did Roberts do it? In part, the outcome reflects the fact that the truly radical position in this dispute was that of the challengers. Even very conservative lower court judges, including Jeffrey Sutton of the Sixth Circuit and Laurence Silberman of the DC Circuit, had concluded that the law was valid (although on Commerce Clause, not taxing power, grounds). But in addition, I cannot help but think that at the back of Roberts’ mind was the Court’s institutional standing. Had the law been struck down on “party lines,” the Court’s reputation would be seriously undermined. In May, the Pew Research Center reported that favorable views of the Supreme Court as an institution had reached an all-time low. Sharply divided partisan decisions like Bush v. Gore and Citizens United appear to have done damage to the Court’s legitimacy—and ultimately, its legitimacy is the source of the Court’s power. Today’s result, which upholds the actions of the democratically elected branches on a major piece of social welfare legislation that affects us all against a challenge that was always a real long shot, driven more by politics than legal principle, may help repair the Court’s tarnished image. MORE...

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