After all the brouhaha, I’ve come to the conclusion that, although I would have liked to have seen Obamacare overruled Thursday, fussing about the details of Commerce Clause vs. tax power isn’t really the point, although it’s legally interesting and Justice Roberts’s convoluted reasoning for doing what he did is rather mind-boggling and almost frightening in its pretzel-like gymnastics.
So, what is the point? The 2012 election, for the simple reason that whoever becomes president will determine the future of the Court for a long long time to come. And the Court has a lot of clout.
If Obama is elected, and gets to appoint his picks, you better believe that both the Commerce Clause and the taxing power and everything else that increases the reach of government will expand. Under Obama, any liberal justice who might be old and/or sick will feel free to retire and have some younger version of him/herself appointed. The conservative justices will just have to hang on and take really good care of themselves, including “ranting old man” Scalia, who’s 76 and not really that old in SCOTUS-years (which are sort of like the opposite of dog years).
If Romney is elected, the same would be true but with the parties reversed.
And yes, I’m familiar with frequent assertions by conservatives that Romney is so unconservative that he’ll appoint squishes who will turn, like Roberts. They often point to Romney’s record of judicial choices in Massachusetts, but they forget the fact that Romney was working in an ultra-liberal state. Things will almost certainly be different when he is president—although I also understand that unless the most staunchly conservative judges are appointed, there’s always the possibility of a Souter-like (or now we can add Roberts-like) “change” experience.
[NOTE: Those interested in learning more about Romney's actual record in picking judges in Massachusetts---as opposed to hearing quick soundbites on the matter---would do well to read this article.]