While the Supreme Court's decision to uphold most of the Affordable Care Act in NFIB v. Sebelius was generally good news, the decision did have one unfortunate side effect. The Court limited the use of federal spending power with respect to Medicaid, permitting Congress to withhold new grants but not existing Medicaid funds from states if they failed to adopt Obamacare. In other words, governors can reject new federal funds to implement the health-care law without losing the rest of their Medicaid money.

Two features of the scene in the courtroom at the Supreme Court Thursday flow together to spark curiosity. For one, the justices appeared unusually agitated. Justice Sonia Sotomayor looked as if she’d been up all night, for example, while (as Tony Mauro also noted) Justice Antonin Scalia was downcast and tight-lipped. Had something happened in the days or hours before the opinion to spark this emotional response?

On the fourth day of the Battle of Gettysburg, General Richard S. (“Bald Dick”) Ewell, riding behind the lines, was hit in the leg by a Union sniper’s bullet. Unfazed, the one-legged general remarked, “It don't hurt a bit to be shot in a wooden leg.”

It may be that the federal government was shot in a wooden leg today. Overall, that’s true—the ACA survived, by one vote, a case that could have voided it in its entirety and wreaked havoc on federal power generally. But in particular, in the Court’s major new cutback on federal power—the limits on the use of Congress’s spending power to convince the states to sign on to an expanded Medicaid program—the federal government was wounded by being forbidden to do something it really never wanted to do. 

Hard to say what’s more bizarre about Antonin Scalia’s furious dissent against the Supreme Court’s decision striking down most of Arizona’s anti-immigrant law: his railing at President Barack Obama’s executive order stopping the deportation of immigrants brought here as children (which wasn’t remotely the subject of the case at hand) or his basis for upholding Arizona’s law—that Arizona is a sovereign state with the rights generally claimed by nation-states.

“Before you get into what the case is about,” Chief Justice John Roberts told Solicitor General Donald Verilli at the beginning of the government’s argument in United States v. Arizona, “I’d like to clear up at the outset what it’s not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.”

A non-lawyer might be puzzled. The case, argued Wednesday, is testing the constitutionality of part of Arizona’s S.B. 1070, a statute that seeks to drive undocumented immigrants out of the state by rigid law enforcement. 

Just a few days ago, most people including me) thought that while Thomas, Scalia, and Alito might display their naked partisanship in deciding the fate of the Affordable Care Act, both Anthony Kennedy and Chief Justice John Roberts, concerned with maintaining the Court's legitimacy and integrity, would surely uphold the law. And now after the spectacle the justices made of themselves for three days, everyone seems certain that the law is doomed, in whole or in part. And it really was a spectacle, one in which, as E.J. Dionne says, the "conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee." What, you thought the Supreme Court's job wasn't to decide if they personally like a particular law, but whether it's constitutional? How quaint. Justice Scalia even asked whether if the government can regulate the insurance industry, it can make you buy broccoli, as though he had been watching Sean Hannity the night before and said, "Oo, that's clever—I'm going to use that one!"

So let me turn around the question conservatives have been asking about the mandate. If the Supreme Court will strike down this law that every sane and knowledgeable observer, both Republicans and Democrats, understands is obviously and clearly within Congress' power (see here, for example), what won't they do?...

I was somewhat surprised, prior to this week's oral arguments, how optimistic some of my favorite legal and political observers were about the outcome of the Affordable Care Act case being argued at the Supreme Court this week.