I am quite baffled as to you assessment of the article as being terrible which certainly can be the case but am surprised by your review. One of the authors, Glenn Harlan Reynolds, University of Tennessee College of Law is one of the most prolific, popular writers on the web and Instapundit, a very wel written blog he authors that’s been online for over a decade if not longer is an absolute favorite. But none of it necessarily translates into this article being any good.
I saw problems in the article in that, while it did second guess Roberts, it ignores the obvious, that there were nine votes, and things are not always as they appear.
My focus is on Justice Kennedy. Politely he is called a “swing vote” between the conservative and liberal side of the court, but practically, he is both treacherous and duplicitous, voting with the conservative side of the court only for minor decision, yet invariably voting with the liberals for major decisions. He cherishes this duplicity.
“In recent years, Kennedy, 71, has become one of the strongest proponents of interpreting the Constitution’s guarantees of liberty and equality broadly and in line with modern (international) human rights law.”
“It is proper that we acknowledge the overwhelming weight of international opinion... The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”
Yet while the assumption *before* the Obamacare decision was that Kennedy would be the 5th vote to uphold Obamacare in its entirety, Roberts not only took that away from Kennedy, but by being part of the majority, Roberts used his authority to write the majority decision.
Kennedy was enraged. Immediately after the decision, he came out with a statement that should be examined *very* carefully.
http://www.politico.com/news/stories/0612/77953.html
To start with, he did say that Obamacare should have been overturned in its entirety. He could say that, because he was on the minority side, so what he said didn’t matter.
But then he expressed why he was *really* so angry.
“What Congress calls a penalty, we call a tax,” Kennedy said. “In short, the court imposes a tax when Congress deliberately rejected a tax. Congress went to great lengths to say it was a penalty,” Kennedy added.
(However, “penalties” are much harder to overturn than “taxes”, which have very strict rules, yet can be overturned with a simple majority.)
Kennedy continued: Kennedy also questioned the court’s interpretation of the Medicaid option that will allow states to continue participating if they want to. He called the majority’s reading a form of “new federalism that offers states a choice” where Congress didn’t give it one.
(Wait a second. If he is a conservative, then why is he so upset with diminishing national government power by giving states more power? More power to the states threatens a whole litany of national powers.)
The bottom line is that I think Roberts outfoxed Kennedy as well as the other liberal justices. And the conservative justices as well. He played them all like a violin.
I just think the authors need to think a bit more about the implications of the decision. There is a huge area they don’t even touch regarding how Roberts has essentially laid the groundwork for a return to Lochner era jurisprudence. They are correct that Roberts sneakily did something very conservative that people seem to have missed, but the authors missed it too.