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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