As the Dust Settles . . .
posted by Gerard Magliocca
More thoughts (Next week I’ll put together a bigger post on where the Health Care Cases leave us.)
1. Yesterday was probably bad news for those hoping for “liberal” rulings from the Court on voting rights and affirmative action next year. Chief Justice Roberts is (at least for a while) bulletproof and need not be concerned with accusations of partisanship. (And on the Voting Rights Act, the Court has already bent over backwards once to save the statute once.) Now you might think that this is a price worth paying to save the Affordable Care Act, but that’s another story.
2. The Chief Justice’s rationale that the individual mandate is a tax means that it can be repealed with just fifty votes in the Senate (under the reconciliation rules with a Republican VP) rather than the normal sixty.
3. When the Supreme Court struck down the National Industrial Recovery Act in 1935, most people saw that as a big setback for FDR. Others, though, concluded that the Justices did him a favor by killing an unpopular (and poorly designed) law. Here the opposite could be true. Upholding the Affordable Care Act could end up hurting the President’s chances of being reelected in the Fall because it is not popular and the White House cannot use the Court as a piñata. Just food for thought.