Posted by Lexington Green on July 2nd, 2012 (All posts by Lexington Green)
Most of the commentary I am seeing on Chief Justice Roberts’ Obamacare decision falls into two categories: (1) why the opinion is doctrinally and substantively wrong, and (2) the various awful things which will or might happen as a result of it.
Point 1 may be correct. Mark Levin had a vehement and convincing analysis asserting that the opinion is legally defective. Point 2 may also be correct, the consequences of the opinion may be awful, sooner or later.
But neither of these points much matter. Both are backward-looking. Both, in effect, say, if only Roberts had done something different than he did.
It is a waste of time to worry about that. A Supreme Court opinion is pretty nearly immutable. John Roberts will likely be Chief Justice for decades to come. Bring down the curtain on that act in the drama. It is over.
The only question that matters right now is this: What political dangers and opportunities does this opinion create? How can we make use of this opinion? How can we minimize the political damage from this opinion? (I notice Mr. Obama got an uptick on Intrade as a result of it.)
A military commander has to take the terrain and weather as they are given. The set parameters within which he must operate. He cannot waste time bemoaning the mud, or the rain, or the height of the cliffs or the aridity of the desert.
A major Supreme Court opinion is similarly a “given.” It is like a sudden shift in the terrain. It is as if an earthquake had changed the course of a river. You now simply have to work with that new feature of the landscape, and whether it should have happened or whether it is a bad thing overall are both irrelevant.
My initial assessment is that the opinion provides a substantial amount of ammunition to people running against Mr. Obama, other Democrats, and Obamacare itself. I would like to see the many people smarter than myself focusing on this angle. We only have a few months. There is not a lot of time for theorizing. We should be thinking in strictly utilitarian terms: How can we use this ruling to win elections in November?
Leave everything else for the “long term,” for now.