James Taranto who writes the Best of the Web Today column for The Wall Street Journal’s Opinion Journal webpage thinks so. I think it was a small defeat that won’t stop the left one bit, but Taranto is a giant so maybe he’s right.
So what we have here is another 5-4 decision, just like Bush v. Gore and Citizens United. But as a political matter, NFIB v. Sebelius is different in two important ways. The obvious one is that this time the left loves the outcome. Somebody will have fun compiling a list of quotes from lefties bewailing 5-4 decisions yesterday, then praising this one. You can start with Reich.
The second difference is that the result in this decision is likely to be hated by people who aren’t immersed in politics. The left hated Bush v. Gore for partisan reasons and hates Citizens United for ideological ones. People who aren’t particularly partisan or ideological had no reason to care about either of those rulings. But this one will affect their health care, and a large majority of the public has long been hostile, and rightly so, to ObamaCare.
What’s more, Roberts’s opinion has made a liar of President Obama, who in a 2009 interview with ABC News insisted that the mandate was “is absolutely not a tax increase.” He even lectured the network’s George Stephanopoulos, who had cited the dictionary definition of tax: “George, the fact that you looked up Merriam’s Dictionary, the definition of tax increase, indicates to me that you’re stretching a little bit right now. Otherwise, you wouldn’t have gone to the dictionary to check on the definition.”
Read the whole column at the link above for an in depth analysis of Roberts’ opinion which I believe aptly demonstrates Richard Epstein’s charge that it’s “intellectually shabby.” Taranto would not agree (I think) so that makes his column a must read.