New York Times legal reporter Adam Liptak used his Friday lead [1] (five other reporters contributed research) on Obama-care being upheld at the Supreme Court to take another crack at the argument by conservatives and libertarians, the so-called broccoli argument "as misguided, if not frivolous."
Conservatives took comfort from two parts of the decision: the new limits it placed on federal regulation of commerce and on the conditions the federal government may impose on money it gives the states.
Five justices accepted the argument that had been at the heart of the challenges brought by 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservative and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.
Lester Jackson had previously noted a front-page attempt by the Times' economics writer James Stewart "to belittle the broccoli example as a far-fetched 'notion' of right-wing extremists" at The American Thinker [2].
In February Liptak notoriously argued that the U.S. Constitution was old and busted [3]for failing to provide such 'rights' as free health care, writing "The United States Constitution is terse and old, and it guarantees relatively few rights."
While conservatives feel betrayed by Roberts, Liptak's "news analysis," also on the front page, praised "Roberts’s Delicate Twist. [4]"
Chief Justice John G. Roberts Jr. has a favorite quotation from one of the giants who preceded him on the Supreme Court. Assessing the constitutionality of a law passed by Congress, Justice Oliver Wendell Holmes Jr. once wrote, “is the gravest and most delicate duty that this court is called on to perform.”
In finding a way to uphold President Obama’s health care overhaul law on Thursday, Chief Justice Roberts performed the task with exquisite delicacy. That he did was a surprise from a judge whose rulings and background, including legal work in the administrations of President Ronald Reagan and the first President George Bush, suggested a conventionally conservative worldview.
....
But the chief justice’s defining and delicate role in upholding the health care law will always be associated with his tenure.
On the one hand, he said, the law’s requirement that most Americans obtain health insurance or pay a penalty could be justified under Congress’s power to levy taxes. The four liberals agreed, though they would have preferred to sustain the law as a regulation of commerce.
But the law could not be justified in that way, the chief justice went on, and here he was joined by the court’s four more conservative members.