The Great Dissent Part I: Four Justices in Obamacare Make Case for Constitutional Conservatism

Ken Klukowski
Big Government
5 Jul 2012

One week after the Supreme Court handed down its most consequential decision in decades (if not more than a century)—upholding almost all of Obamacare in NFIB v. Sebelius—constitutional lawyers are just beginning to wrap their heads around the Court’s 193-page opinion.

This column is the first in a series of that will unpack some of the most consequential aspects of that decision, mostly quoting relevant parts of the decision that will have lasting consequences for the country.

The dissent in NFIB v. Sebelius, written jointly by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, is one of the finest judicial opinions I’ve ever read, if not the single finest. That this opinion was only one vote shy of being a majority opinion that would bind the government and the nation going forward is a tragedy of Shakespearean magnitude. We came within a single vote of winning it all.

As the dissenting justices concluded their opinion:

The Court today decides to save a statute Congress did not write…

…The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it…

The complete article is at Big Government.

RelatedRomney: You Bet It’s a Tax!

In an exclusive interview, presumptive GOP presidential nominee Mitt Romney on Wednesday told CBS News chief political correspondent Jan Crawford that the individual mandate in President Obama’s signature health care law, which was upheld last week by the Supreme Court, is “a tax.” The remark contradicts what his campaign asserted Monday, when senior adviser Eric Fehrnstrom said Romney believes the mandate is a “penalty,” not a tax.

Update: Victor Davis Hanson, Justice Roberts — Tragic Figure

…Roberts, who wanted to cement his reputation as a sober and judicious jurist, through his Hamlet-like deliberations ended up seeming incoherent, tentative, and unsure of himself. And if it’s true that rumors of Roberts reconsidering his vote swirled in Washington prior to the final outcome, and that such perceptions of hesitation prompted renewed venom and pressure — from not just the media, but from those such as Senator Leahy (who had voted to confirm Roberts) on the floors of Congress, and the president himself (who attacked the Court even earlier in his State of the Union address) — then the Court comes off as far more suspect after the opinion than before. Everything Roberts wished to prevent he ensured…

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