So-called judicial "tests" are so obviously malleable that they don't seem to drive the Court's results. It is sometimes too easy to see the Court's desired outcome dictating the application of its "test," rather than the test producing the outcome.
This ruling may be a disappointment. However, if we are serious about having the courts exercise greater respect for the separation of powers, then we have to embrace that philosophy even when it's politically inconvenient.
In the end the Roberts decision is not just a win or loss for ideology or legal theory. It's an example to the world that in the United States there's something called the Rule of Law. That's a victory for everyone.
It was Justice Scalia's argument that if the government could force an individual to purchase health insurance, it could presumably force an individual to buy broccoli, that convinced me the Supreme Court should uphold the individual mandate.
Shortly after the constitutional challenges to the individual mandate were filed, the DoJ filed oppositions claiming that a law prevented the suits from going forward until 2015. That defense was rejected and the decision might have fatal consequences for the defense of the mandate. Here's why.
From the standpoint of constitutional law, overturning the Affordable Care Act could put dangerous constitutional restraints on Congress's ability to forge national solutions to national economic problems. That's a dangerous precedent that goes far beyond health care policy.
The smartest move by the Supreme Court would be to let the American people, in effect, make the decision in this year's elections. The Court would preserve its prestige and power and avoid serious damage to the economy and the basic physical health of the country.
Matalin and Kuby clash over health and race. If five Republican justices again rule along party lines, who are the judicial activists? What about Fox's complaint about a rush-to-judgment in Trayvon -- i.e., the Sherrod-Wright cable network? Then: Gaffe-Gate!