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Clarifying the Stakes


I have a piece up about the surprising fact that Roberts, not Kennedy, was the swing vote. (Although I should note that Adam called it.) While today’s decision was a relief, it shouldn’t be forgotten that the are four votes to effectively rule the Great Society unconstitutional:

What this decision makes particularly clear is the stark choice facing Americans in November. In a sense, it is futile to speculate how Roberts’s hair-splitting will play out, because with four members of the Court over the age of 70, this will be determined by a different bench. Thanks to Chief Justice Roberts, the constitutional order represented by the New Deal and Great Society remains intact—but there are now four justices on record as rejecting it. If Mitt Romney is charged with replacing Ruth Bader Ginsburg, the federal powers that have been taken for granted since 1938 will almost certainly perish. The constitutional revolution being proposed by Justices Kennedy, Scalia, Alito, and Thomas did not succeed today—but it is frighteningly close, and should it be realized, the effects on America’s most vulnerable citizens would be catastrophic.

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