Dahlia Lithwick on the individual mandate and the Supreme Court:
If the odds of success for the health care challenges have tilted in recent months, it's not because the suits themselves have somehow gained more merit. It's because the public mood and the tone of the political discourse have shifted dramatically—emboldening some federal judges willing to support a constitutional idea whose time, in their view, has finally come. Whether this sea change will affect the Supreme Court remains to be seen. At least on paper, the Supreme Court is immune to whatever the odds makers are saying about the law's chances. If recent weeks have shown us anything, however, it's that what's on paper doesn't matter as much as we think it does in the nation's courts.
I'm just going to keep saying this: Conservatives have understood from the beginning that this is a political fight more than a legal fight, and they're armed with a legal language that obscures the politicized nature of their arguments. Liberals thought they were in a legal fight rather than a political one and don't have the necessary language to effectively counter their opponents. Instead of bringing a knife to a gun fight, liberals brought a copy of the Harvard Law Review to a Tea Party rally.