I should explain why I call the decision shocking and bizarre. There were numerous arguments for the constitutionality of the law. The argument that it could be uphold under the power to tax struck me as convincing (Jack Balkin made the case a month before the decision) but not completely airtight. You could plausibly deny the mandate was a tax, whereas the arguments denying it as a function of the Commerce Clause were insanely tendentious. Liberal lawyers were unanimously supportive of the Commerce Cause justification and divided on the taxing arguments. Conservative lawyers were divided on the Commerce Clause and united on the taxing authority. The overlap of legal minds willing to accept the fantastical right-wing arguments against the law but also to accept the weakest liberal argument for it contained nobody at all, until Roberts himself stepped forward to claim this unoccupied territory. ...As reassuring as the bottom-line result of Roberts's decision may be, the process by which he arrived at it was so unnerving. The legal arguments he did endorse were simply crazy. And, beneath the legal gobbledygook, the form of craziness was crude and obvious....Jonathan Chait, Daily Intel
I think Jonathan Chait is exactly right. And if protocol allowed, I'd seize his entire post and copy it in here. I agree with all of it and have already written similarly but not clearly in my own posts. Here are his final straight-to-the-jaw remarks -- straight to both jaws, politically speaking.
David Frum brilliantly compares the this-isn’t-really-in-the-Constitution-so-I’ll-wing-it logic of the conservative dissent to the famous liberal activism that liberal justices used to create a right to sexual freedom in Griswold v. Connecticut. That earlier case, rightly scored by conservatives for decades, declared that “emanations” from the Third, Fourth, Ninth and Tenth Amendments created a right to privacy that extended to sex. The four conservative justices insisted Obamacare couldn’t be constitutional because… well, just because:
What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.
They can’t say what limits the government can prescribe upon private conduct. But they don’t like this health care business. So they’ll just cite the Constitution in general as their source here, with all the legal precision of some guy in a tricorner hat at a Tea Party rally. (Scalia also hates dope smokers so anything he may have said about limiting their private conduct does not apply to health care.)
Roberts was willing to endorse the legal logic of this thinly veiled justification, but unwilling to accept the political consequences of it. If his decision was justice, it was justice of the roughest kind. ...Daily Intel
Emanations! I love it!