Having now read more teeth-gnashing opinions from conservative pundits on how the Right really got its clock cleaned with the Sebelius decision, I have a few additional thoughts.
First, the idea that Chief Justice Roberts ruled as he did in order to curry favor with Left-leaning opinion-makers and the Georgetown cocktail party set seems really feeble. If Roberts was truly a “stealth” liberal, why did he rule the way he did in Citizens United? The Left’s equivalent of Roe v. Wade would have seemed to be a worthy candidate for a decision to obtain for Roberts the approbation of the Left. Why did he wait until now to reveal his colors? Anyone espousing this view needs to provide more support for it than simply claiming that Roberts is a “traitor.”
Second, if this is decision such a disaster for the Right and such a huge win for the Left, why were the liberals on the Court - particularly Ginsburg – so peeved by the decision? They issued a concurring opinion roundly criticizing the Chief Justice’s reasoning, but nonetheless had to swallow their distaste and sign on to Roberts’ opinion in order to obtain the result they so clearly desired – the upholding of the ACA.
What this appears to me is a fixation among conservatives with the outcome at the expense of the reasoning. Roe v. Wade is roundly (and rightly) criticized for slipshod legal reasoning in Justice Blackmun’s opinion. If the result of the case – overturning states’ abortion laws – had been done by an act of Congress, conservatives would still be unhappy, but not as unhappy has having a specious “right” created out of thin air where none exists under the Constitution. It is more important in my opinion to focus on how the Court reached its result, rather than simply foam at the mouth about how bad the result was. Really, does any conservative want to be seen as the same kind of mewling, whiny, punk-ass bitch as the Wisconsin Weeping Boy? (“This was the end of democracy. [sniff] The end of the USA as we know it just happened. [sniff]“). To those on the Right, I say: MAN UP!
Here, conservatives are unhappy that ObamaCare has been ruled constitutional and direct their ire at the Court for allowing it to stand. Forget that it took one vote – Republican Olympia Snowe’s – to send the bill out of Senate committee to a vote. Forget that it took arm-twisting and bribes by the President to get it passed by the Senate, which Republicans were unable to prevent. Forget that it took parliamentary shenanagins to get the monstrosity passed by both houses of Congress. Conservatives failed politically, and were looking to the Supremes to save them – never a safe bet (See, e.g., McConnell v. FEC, the Supreme Court decision that initially upheld the McCain-Feingold assault on free speech. George W. Bush signed that POS law assuming that the Supremes would overrule it, thus allowing him to appear to be for it when he was really against it. Well played, W. /s).
Fix the problem with the ballot box.
(For a more thoughtful analysis in concert with my view, read this: The Chief Justice Done Good.)