Way back when the Supreme Court first entertained oral arguments in the case of National Federation of Independent Business et al. v. Sebellius, Secretary of Health and Human Services -- or, if you prefer, "The Obamacare case" -- the consensus view was that the Obama administration had really screwed the pooch, in terms of lawyering, and that the Affordable Care Act was surely doomed. The League of Extraordinary Legal Rockstars was left gasping over the fate of the individual mandate, the relative constitutionality of which they never doubted. And supporters of the law began a three-month period in which they seemed to expect that the eventual outcome would be a hopeless one.
It’s fair to say that this is how the conventional wisdom on the ruling got shaped, and that the world was more or less primed for the court to rule against the law. As Democrats planned to drown their sorrows, House Speaker John Boehner (R-Ohio) believed he had a problem on his hands, one that he tried to address in advance by reminding his colleagues in a memo not to gloat when they won.
As it turns out, that wasn’t necessary. This morning, it was conservatives who initially found themselves despairing.
The conservative world publicly erupted in reaction to a ruling that few thought was possible -- the individual mandate, “saved” by Chief Justice John Roberts as a tax, lives on. As does the law. This has resulted in a variety of public responses. For many, these range from mild dismay to out-on-a-ledge despair. But as the day wore on, others started working out in public what their new strategy is going to be. No matter how you slice it, it seems that few expected the result. (Maybe Indiana Republican nominee-for-U.S.-Senate Richard Mourdock really was the shrewdest of all, by gaming out a reaction for the YouTube audience no matter which way the court ruled.)
Much of the initial conservative ire at the Supreme Court’s surprise decision was directed squarely at Chief Justice John Roberts, who sided with the court's more progressive justices in the contentious 5-4 decision. The Daily Caller featured conservative heavyweight and Media Research Center president Brent Bozell slamming Roberts, saying “his reputation is forever stained in the eyes of conservatives.” Bozell went on to call Roberts “a traitor to his philosophy.” Likewise and with typical bombast, conservative commentator Ann Coulter took to Twitter with a similar, if simpler refrain, referring to Roberts as “Chickensh*t.”
But many of the Roberts haters might have missed the way Roberts offered conservatives both a long- and short-term gain. In the short-term, Roberts got the word “tax” injected into the discussion. This allowed many conservatives to execute one of those abrupt message pivots that are almost stereotypically characteristic of election year politics. Now, the right could spin the result as a tax increase on the American people.
“Obamacare is nothing more than the largest tax increase in the history of the world,” said right-wing radio talker Rush Limbaugh, leading the charge. “And the people who were characterizing it as such were right and were telling the truth.” The same line of attack came out of the Romney campaign in a midday statement, with the presumptive candidate reiterating his position that “Obamacare raises taxes on the American people by approximately 500 million dollars [and] cuts Medicare by approximately $500 million dollars.”
As Daily Caller journalist and famed Obama-interruptor Neil Munro wrote: “Obamacare becomes Obamatax.”
As far as the long-view of Roberts ruling went, what the people raging at Roberts missed initially was the fact that Roberts essentially agreed with many of the conservative arguments against the law. As Ezra Klein wrote:
If you read the opinions, he sided with the conservative bloc on every major legal question before the court. He voted with the conservatives to say the Commerce Clause did not justify the individual mandate. He voted with the conservatives to say the Necessary and Proper Clause did not justify the mandate. He voted with the conservatives to limit the federal government’s power to force states to carry out the planned expansion of Medicaid. "He was on-board with the basic challenge,” said Orin Kerr, a law professor at George Washington University and a former clerk to Justice Kennedy. “He was on the conservative side of the controversial issues.”
This largely went unnoticed by conservatives in their initial twinge of pain over the ruling. But as the dust settles, some on the right have begun to soften their stance in regards to the long term effects of the ruling.
You can see this shift in the way Virginia Attorney General Ken Cuccinelli, who helped lead the Constitutional charge against the Affordable Care Act, reacted throughout the day. As the Richmond Times-Dispatch reported, Cuccinelli initially called today “a dark day for the American people, the Constitution and the rule of law.” By the afternoon, however, Cuccinelli seemed to embrace a more favorable view of the of the ruling’s long-term impact, saying, “On the health care policy side today, our side mostly lost. On the liberty side, we won.”
Cuccinelli’s shift in opinion followed the lines that Klein identified. As Cuccinelli explained, the court’s decision to reject the Constitution’s Commerce Clause as acceptable legal grounds for Congress' imposition of the individual insurance mandate was the big victory for “the liberty side.” Cuccinelli appears to have realized that Roberts’ narrow reading of the Commerce Clause fits quite well with longstanding conservative constitutional views.
Of course, as some conservatives looked for a scapegoat to frame and others comforted themselves with good old anti-tax rhetoric, a few on the right saw one and only one possible outcome from the court’s decision: total and complete apocalypse. “This is the greatest destruction of individual liberty since Dred Scott,” tweeted Breitbart.com Editor-at-Large Ben Shapiro. “This is the end of America as we know it. No exaggeration.” Taking on the kind of dejected tone usually reserved for candle-light vigils and funerals, Rep. Jack Kingston (R-Ga.) tweeted, “With #Obamacare ruling, I feel like I just lost two great friends: America and Justice Roberts.”
Tracking the conservative responses to the Supreme Court’s Affordable Care Act ruling was much like tracking the reactions to the ruling in general: it began with a flash of hype, eventually faded into a period of actual thought, and resolved itself with the realization that today’s decision wasn’t entirely definitive. To be sure, the Obama White House has much to cheer today. But the game isn’t over: not in terms of policy, politics, or -- perhaps most importantly -- precedent.
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