That Said, Why Did Conventional Wisdom Fail?

Let’s assume that Tuesday’s argument on the individual mandate wasn’t what any reasonable proponent should’ve expected, and that the Justice’s questions are cause for alarm. Why was every serious legal academician wrong? Two reasons. First, this is a Supreme Court that’s defied convention again and again, making them the most “activist” and conservative Court in recent memory. Neither a personal right to bear arms nor a speech right to override campaign finance laws had any serious support before the Roberts term. Second, this may be a more politically sensitive Court. Justice Thomas has always had extremist views of federal power; seeing the Tea Party grow up around has probably convinced him that his time has come. If he’s even halfway convinced his colleagues that paleoconservative orthodoxy is the new normal…

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