Thank You, Justice Scalia

by Stuart Shapiro

A commenter on Andrew Sullivan’s blog makes an important observation about today’s decision.

Even more strangely, it refers repeatedly to the “Ginsburg dissent,” but Ginsburg is in the majority on most issues. What’s all this about? Were the tables turned midway? Did Roberts first sign on to Scalia’s opinion and then bail on him? Is that what Ginsburg was ribbing Scalia over in her ACS remarks? I suspect there is an amazing an untold backroom story behind this decision. It may be a while before we learn it. But the sense I have is that Scalia had the votes to take a sledgehammer to ACA, and then lost Roberts. Was it Scalia’s overreaching and his overheated rhetoric that did him in?

Scalia would have overturned the entire act (including the Medicaid expansion).  Perhaps Roberts was ready to kill the mandate but preserve the rest, and Scalia’s extremism drove him away.  Who knows, but I can’t tell you how much I enjoy the fact that the Affordable Care Act may be as much the legacy of Justice Scalia as President Obama.

By: Stuart Shapiro

Stuart is a professor and the Director of the Public Policy
program at the Bloustein School of Planning and Public Policy at Rutgers
University. He teaches economics and cost-benefit analysis and studies
regulation in the United States at both the federal and state levels.
Prior to coming to Rutgers, Stuart worked for five years at the Office
of Management and Budget in Washington under Presidents Clinton and
George W. Bush.