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So the Supreme Court upheld Obamacare with a surprising vote by Chief Justice Roberts and now this is the stage we’re at:

We can say anything we want.

Things like, There is no Individual Mandate — it is the Breath Tax.

Consider:

  • Most people wouldn’t have recognized the name John Roberts as the chief justice of the SCOTUS before yesterday and so their impressions of him are based solely on this decision. Most people can’t name 3 justices.
  • The actual Court opinion is a complex 193 pages of court speak. It’s reasonable to estimate that very few people are going to read or have the training to read the entire thing and so their impressions are based on summaries which need not be completely accurate.
  • The ruling and the reasoning are distinct and though many will focus mainly on the ruling in either celebration or disgust, they ignore the reasoning at their own peril.

People generally don’t know anything about the Supreme Court, John Roberts, or enumerated powers, most of the morons I sat in constitutional law classes with for three years included. If I said Saddam Hussein should have been sentenced to death unanimously by all 12 justices of the Supreme Court, plenty of people would nod along. So when a major media event like the Obamacare ruling occurs, the loads of people just being introduced to the Supreme Court are impressionable.

It’s hopeless for the average dude to understand this stuff, so it’s important to simplify, build a narrative, and establish hero/villain roles. John Roberts was the conservative judicial prodigy appointed directly to be chief Justice by George W. Bush to curb federal power and overturn both Grutter v. Bollinger and  Roe v. Wade, thereby outlawing affirmative action and allowing states to criminalize abortion. Big time conservative stuff.

Yet with one decision he’s being declared a liberal hero by liberals and Benedict Arnold” by some conservatives. Less bombastic conservatives such as Charles Krauthammer insist Roberts was protecting the legitimacy of the court while trimming back the Commerce Clause and providing the “tax-hiker-in-chief” line of attack against President Obama. Though there’s a lot of credibility to this important reasoning, the shocking nature of Roberts’ decision lends itself more readily to the more polarized characterizations.


Use context clues to figure out who this guy is.

Just the day before the ruling, it was expected by many that the Individual Mandate would be ruled unconstitutional, if not the entire law. If the mandate  had any chance of standing, the swing vote would belong to Justice Anthony Kennedy. Kennedy ended up in the minority, signing on to the dissent declaring the whole law unconstitutional. From the conservative perspective, Kennedy was that guy everybody suspected of being the traitor, but he ended up being a good guy after all. The actual “traitor” was the leader of the team whom nobody suspected would turn on them: Chief Justice John Glover Roberts. The Supreme Court rarely becomes a thriller movie like this.

A few ways to fit a pop-culture narrative from the conservative perspective:

  • John Roberts is LeBron James. He was the chosen one, meant to lead long-suffering conservative jurisprudence to glory, then with one shocking, media sensation “Decision,” he broke his fans’ hearts and abandoned his team to scoff and preen with a lot of arrogant trolls.
  • John Roberts is Anakin Skywalker. Again with the “chosen one” thing. He was a prodigy in whom the party elders saw great potential, meant to restore judicial balance to constitutional law run amok. He was seduced by power and the easy path, turning to the dark side at the service of The Emperor.
  • John Roberts is Albus Dumbledore.  The robed sage, unlimitedly clever and wise. We don’t know a lot about him, but people he wants only to help turn against him because he refuses to complete difficult tasks for those they were meant for. He leaves behind clues that the heroes must decipher to unlock the secret of defeating the Death Eater healthcare plan.

From the liberal point of view, Roberts is any powerful anti-villain who started out a full villain and then switched to the good side either for good, or conditionally to work against the real evil. Tommy the green Power Ranger, Vegeta from Dragon Ball Z, Ben Linus from LOST, Magneto from X-Men, various WWF wrestlers, etc. In their joy at the Obamacare ruling, upholding the Individual Mandate, Chief Justice Roberts has been celebrated and accepted by liberals, leading them to say very nice things about him they might regret if he hands down a very conservative ruling next time.

Once we decide which character John Roberts is, we need to focus on the election rhetoric that results from the Obamacare ruling. It’s not vastly convincing for the Obama campaign to say, “The Affordable Care Act is Constitutional! Even John Roberts says so!” as the general elation amongst liberals seems to suggest. It’s tough to turn this into a positive campaign issue even with the affirmation from the Supreme Court. The president’s signature legislation is supposed to be constitutional the way you’re supposed to know your times tables by the fourth grade. You don’t get extra points for doing it.

Obamacare is still unpopular with only one third of Americans supporting it. The SCOTUS ruling is likely to fire up the opponents of Obamacare more than voters who support it and the constitutional challenge wasn’t actually initiated by Mitt Romney or any Republican member of congress. Being constitutional isn’t enough to be popular; for example, raising taxes is completely constitutional, yet highly unpopular. Speaking of that.

Roberts’ opinion, while upholding the Individual Mandate in principle, declares it a tax and not a commerce-regulating “penalty.” If it was constitutional under the Interstate Commerce Clause, congress would have the power to make you do anything by virtue of your existence. Instead, Roberts ruled that the “penalty” for not buying health insurance instituted by the law was in fact a tax, and congress already had virtually unlimited power to tax. It’s kind of complicated.

The end result is that Obamacare stands, but has been defined by the highest court in the land as a tax. And it’s going to raise taxes $500 billion over its first ten years. Words like “tax hike” and “five-hundred-billion” aren’t going to be popular and will be very difficult to defend for the Obama campaign since this very reasoning is what prevented the whole law from being struck down. Obama can easily say he agrees with the Court’s decision, but not it’s reasoning to try to weasel out of it, but that explanation isn’t as succinct or sticky as the equally valid “biggest tax hike in U.S. history.”

John Roberts left President Obama and the democrats with this election-year problem. Getting to keep their signature law, but having it branded a gigantic tax. While the Commerce Clause was curtailed, like conservatives wanted. That’s an important campaign issue. John Roberts did not join the liberal wing of the court on this decision — the liberal wing joined him. The four liberals would have declared Obamacare constitutional under the Commerce Clause and not labeled it a tax. Roberts must have threatened to strike the whole thing down unless they were willing to uphold it on his terms. The only thing liberals should like about this case is the ruling, while the reasoning should terrify them.

But liberals won’t look beyond the decision. They won’t know what hit them when they finally register that the opposition is talking about the biggest tax hike in the history of history. They definitely won’t bother to read the opinion and won’t even care to grasp the rationale behind the decision they celebrate. While conservative think tanks quietly start producing messages incorporating the Obamacare-as-giant-tax idea, liberals will continue gloating how the Republican justice ruled in the law’s favor and that settles it.

And those think tanks exist. Have you heard Republicans on TV sounding like they actually know what they’re talking about when they discuss Obamacare peppering their sentences with phrases like “government takeover” and “patient-centered care“? An infamous memo by pollster Frank Luntz suggested certain phrases to republicans when discussing the issue, and the result has been that Obamacare has never been popular. The Roberts opinion provides more fuel to expand that effective vocabulary while liberals fail to pay attention.

While opponents of the law called it “Obamacare” as a pejorative, linking the two inexorably and assigning the clumsy monstrosity to the president, liberals preferred to call it by a shortened version of its proper name, the Affordable Care Act. The Obamacare nickname was effective not because Obama sucked and they put that sucky name on a bill, but because the bill sucked and they made sure Obama owned it. It’s now okay to call it the “Affordable Care Act” as long as you mention “biggest tax hike in U.S. history” or “$500 billion in new taxes” along with it. It’s irony or something. And it’s devastating.

While the dust settles, the liberals stop celebrating and conservatives stop screaming they’ve been stabbed in the back, a new conversation will arise. One that will be about raising taxes and worse. The Supreme Court that no one knows about handed down a shocking decision that no one expected, and those who define their language and frame this outcome effectively first will hold the advantage so far as Obamacare will be a campaign issue. And since no one knows anything about it, message crafters really can say whatever they want.

Best not be too busy celebrating or crying about it. It’s game on.

Posted June 29, 2012 by Wada in Uncategorized

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