Open thread: Mandate-mas III, the Finale; Update: Stolen Valor Act struck down; Update: CNN says mandate struck down; Update: AP reports that mandate upheld; Update: Confirmed upheld, 5-4; Update: Kennedy wanted to strike entire law

posted at 8:41 am on June 28, 2012 by Ed Morrissey

Why not get this party started early?  The decision won’t get announced until 10 am ET, about the same time that the House will come to order this morning to consider whether to hold the Attorney General in contempt over his refusal to abide by a subpoena from the Oversight Committee.  Take your pick of historic events, in other words, and try to predict which will be more memorable in the end.  John Podhoretz had a thought about that last night on Twitter:

So what’s the skinny on the decision?  Last night, Intrade had 72.8% betting that the individual mandate was a goner:

With the Supreme Court set to make its ruling on Obamacare on Thursday, the prediction market on Intrade has placed its bet, reporting there is a high probability that the individual mandate will be struck down.

As of Wednesday night, “the world’s leading prediction market” reports there is a 72.8 percent chance the individual mandate will be ruled unconstitutional — a ruling that would deliver a devastating blow to the Obama administration.

If I was a betting man, I’d probably go the same way.  I think there’s still a decent chance that the court might uphold it, but a slightly better chance that the whole thing will get tossed, more out of convenience than anything else, but the mandate will still be the key.

Of course, if that happens, be prepared for a full-court meltdown among the Left, where the argument has already arisen that the Roberts Court is the Most Activististist Court Evah, with Jeffrey Toobin and (Politico’s) Roger Simon leading the way.  Gabriel Malor demolished this argument on Twitter yesterday, and he compiled his rebuttal into a blog post this morning:

Here’s the data on the first five years of the Roberts Court (gleaned from this NYTimes infographic):

(1) The Warren, Burger, and Rehnquist Courts overturned precedent decisions at an average rate of 2.7, 2.8 and 2.4 per term, respectively. By contrast, the Roberts Court overturned precedent only at an average rate of 1.6 per term.(2) The Warren, Burger, and Rehnquist Courts overturned laws at an average rate of 7.9, 12.5, and 6.2 laws per term. By contrast, the Roberts Court struck down laws only 3 laws per term.

Just three laws per term! Far, far from being “eager” to overturn legislatures, as hack Toobin dribbled, and obviously, indisputably playing no unusual role in “second-guessing laws,” as Fallows alarmingly squeaked, the Roberts Court has been a model of restraint. Restraint is, naturally, one of Chief Justice Roberts’ well-known characteristics and it was remarked upon during his confirmation hearings. One could even creditably call the Roberts Court the most restrained, incrementalist Court of the modern era. (I assure you, these numbers have not changed appreciably in the past two years.)

Again, that assumes that the Roberts Court overturns ObamaCare, in whole or in part.  Will the Right melt down if they don’t?  Er …

Beginning at 8:45 am ET, a few minutes earlier than usual, SCOTUSBlog will start its live blogging at this link, which is where most of us will find out what happened.  I’ll be updating this post as we go along, so check back here frequently.

Update: Don’t forget that there are two other cases on the docket that will get decided today, one of which is the Stolen Valor case.  Can Congress make it a crime to lie about military service, or does the First Amendment cover that as protected speech?  We will soon find out.

Update II: Yes, the circus has arrived.  Jeff Quinton posted this picture of Belly Dancers for Single Payer on his Twitter feed:

Because nothing says, “Take me seriously on health care” like belly dancing.

Update: Not going to number updates here.  Stolen Valor act struck down as unconstitutional 6-3, with Kennedy writing for majority.  Congress may be able to rewrite it, though, according to SCOTUSblog’s interpretation of decision.  Here’s the opinion.

Update: Next case, First American, was dismissed.

Update: CNN reports mandate struck down …  developing …

Update: AP reports mandate upheld as a tax, but clearly there is a lot of confusion on this point.

Update: SCOTUSblog reports that Roberts says mandate is constitutional.

Update: Yup, the court upheld the mandate as a tax, not as part of a Commerce Clause jurisdiction.  They narrowed the Medicaid expansion, but it looks like the bill will survive mainly intact.  CNN may be the biggest loser today.

Update: On Twitter, astonishment from conservatives that Kennedy voted to kill the mandate and Roberts voted to uphold it.  I tweeted this in response:

It helps to laugh a little, people.

Update: Kennedy wanted to strike the entire act, according to SCOTUSBlog: “In our view, the entire Act before us is invalid in its entirety.”


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And of course to truly enjoy this thread, follow this link to all the excitement.

Bmore on June 28, 2012 at 9:15 PM

Oh, and 3000. 3002 now. Bye.

Bmore on June 28, 2012 at 9:16 PM

Or is it 2903?

Bmore on June 28, 2012 at 9:30 PM

THIS IS THE BEST DAY OF MY LIFE!! VINDICATION!!

HondaV65 on June 28, 2012 at 11:20 AM

I must have missed it when the Supreme Court upheld Obamacare under the Commerce Clause as you argued it would.

I must have missed it when the Supreme Court upheld Obamacare under the Necessary & Proper Clause as you argued it would.

I must have missed it when you argued that paying premiums to an insurance corporation is a form of “taxation.”

I must have missed it when you argued that the Medicaid expansion was unconstitutional.

I must have missed it when you corrected President Obama and said the mandate really was a tax, not a penalty.

I must have missed it when you argued that a corporation’s bank account is the same thing as the United States Treasury.

I must have missed it when you flayed the Obama administration for its overreach and governmental expansion, as Justices Kagan, Sotomayor and Ginsburg did today.

I must have missed it when you argued for Obama to break his campaign promise and raise taxes on those making less than $250,000 a year by not only “one, thin dime,” but thousands of “thin dimes.”

Can you produce some examples of your prescient posts?

Resist We Much on June 28, 2012 at 9:34 PM

Did I miss anything?

Del Dolemonte on June 28, 2012 at 9:43 PM

There’s no freakin’ joy in Mudville today.

Casey comes to the plate on November 8th.

Let’s hope he’s mighty that day!

Let’s also hope this game’s not fixed. Sure smells that way!

Sweet_Thang on June 28, 2012 at 9:46 PM

In terms of pure schadenfreude This was a thread for the ages!

An epic HotAir/Right Wing meltdown made even better by the blatant anticipatory gloating, which came to an hilarious halt at around the 10:17a mark. Pure gobsmacked GOLD!

“America’s dead”
“Get your guns”
“Constitution suitable for wrapping fish”
HAHAHAHAHAHAhahahahaha!
How about those sky-high gas prices that were supposed to hurt the President? How’s that working out for you?

The President is too classy to do it, but I’m going to quote Conan the Barbarian to sum up what he did to the Republicans and the Rightists:

To crush your enemies — See them driven before you, and to hear the lamentation of their women!

Yeah, that.

chumpThreads on June 28, 2012 at 9:53 PM

chumpThreads on June 28, 2012 at 9:53 PM

Do you believe 0bamessiah happily agrees with the Court’s decision today that 0bamacare’s mandate is, indeed, a tax? Also, do you believe He’d be happily willing to address the nation and say that He happily agrees with the Court’s decision? :)

Please don’t shy, and answer my questions civilly! :)

Bizarro No. 1 on June 28, 2012 at 10:12 PM

Did I miss anything?

Del Dolemonte on June 28, 2012 at 9:43 PM

Does Dante implying that the votes against Holder today were statist ones count? :)

Bizarro No. 1 on June 28, 2012 at 10:16 PM

chumpThreads on June 28, 2012 at 9:53 PM

Now you just gotta pay for it chump, and I don’t think you realize what’s happened in the last month. The President has given every illegal that can: make it into the country, lie about their age and residence a free work visa, and now the supreme court has given them free health care. You think we’ve had run away spending during his first term? You ain’t seen nothing yet Sally!

DFCtomm on June 28, 2012 at 10:17 PM

FUcT

cptacek on June 28, 2012 at 10:24 PM

Does Dante implying that the votes against Holder today were statist ones count? :)

Bizarro No. 1 on June 28, 2012 at 10:16 PM

I implied no such thing.

Dante on June 29, 2012 at 12:18 AM

Dante on June 29, 2012 at 12:18 AM

Sure you did:

There isn’t a single thing conservative about this Congress.

Dante on June 28, 2012 at 1:35 PM

If there is nothing conservative about this Congress, that means that the votes against Holder must have been non-conservative i.e. statist ones.

If you don’t like the result there, either complain about the nature of logic, or work on your silly, cynical hyperbole!

Bizarro No. 1 on June 29, 2012 at 1:10 AM

Bottom Line, real simple, first to say it.

It’s still alive, folks.

We’ll have to kill it in November.

AZCoyote on June 28, 2012 at 10:11 AM

Bmore on June 29, 2012 at 3:25 AM

Say hello to President Romney.

Bishop on June 28, 2012 at 10:13 AM

You’ll never see this, but this!

Bmore on June 29, 2012 at 3:30 AM

Bizarro No. 1 on June 29, 2012 at 1:10 AM

You and logic are total strangers.

Dante on June 29, 2012 at 8:01 AM

and what a good, hearty laughter it is!

sesquipedalian on June 28, 2012 at 10:24 AM

Keep laughing there little bug, the last is yet to come.

Bmore on June 29, 2012 at 10:32 AM

You and logic are total strangers.

Dante on June 29, 2012 at 8:01 AM

LOL

Try again, you miserable, irrational, prideful dork.

Bizarro No. 1 on June 29, 2012 at 2:02 PM

But Romney is a Conservative!!! /s

How easily the American voter is fooled into complacency. The writing IS on the walls.

DannoJyd on July 1, 2012 at 10:44 PM

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