Did Ruth Bader Ginsburg Peel John Roberts Off the Four New Horsemen by Dint of Intellectual-Rhetorical Mojo Alone?
Amy Davidson thinks so. Here is her analysis of the Switch in Time That Saved RomneyCare:
Ruth Bader Ginsburg, Hero: Ginsburg wrote what would have been the dissent—and a strong one—if Roberts had voted with the four conservatives to throw out the entire health-care law. Instead, her opinion concurred with Roberts when he said that the individual mandate was within Congress’s power to tax—this was the Constitutional loophole he found—but rejected his view that it wasn’t valid under the Commerce Clause, which gives Congress the power to regulate commerce. Ginsburg wasn’t gentle. She wrote that Roberts’s analysis was “rigid,” “crabbed,” and “stunningly retrogressive,” that it “finds no home in the text of the Constitution or our decisions” and made “scant sense.” There was also a mesmerizing dissection of the broccoli question…. Roberts’s view of the Commerce Clause, she wrote,
harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it…. It is a reading that should not have staying power….
[B]y writing a scathing opinion, Ginsburg may at least have done him the favor of showing him what he might have looked like if he had signed on with Scalia: a political opportunist, and almost a fool….
[M]ust we assume that Roberts was the one who came to the aid of judicial damsels in distress and their trusty squire, Stephen Breyer? Or did he find himselfeyeball to eyeball with the senior woman on the court, and blink? Maybe Ginsburg is the one who saved Roberts.
Justice Ginsburg:
"The Broccoli Horrible": A Culinary-Legal Supreme Court Dissent: Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans [and hence a necessary and proper part of the ACA]. The Court would have to believe that individuals forced to buy vegetables would then eat them (instead of throwing or giving them away), would prepare the vegetables in a healthy way (steamed or raw, not deep-fried), would cut back on unhealthy foods, and would not allow other factors (such as lack of exercise or little sleep) to trump the improved diet…
