I find it personally rather sad that every story on the DC Circuit decision finding the personal mandate constitutional mentions who appointed which judges -- and that this is now a common element of reporting on cases. Mind you, as someone who regularly practices in front of the DC Circuit, it is amusing that Silberman has become something of a moderate. But pretty much anybody can be a moderate when sitting next to Douglas Ginsburg.
As for the opinion itself, it seems fairly well written and typical of Silberman (I have not had time to read the dissent by Kavenough). I don't read the final paragraph, which notes that the individual mandate is as much an "infringement on personal liberty" as anti-discrimination laws, as "passive aggressive" and anti-discrimination (as suggested by the Indecision Forever blog). To the contrary, especially when read with the rest of the opinion, it reads to me the opposite. It is a statement that "sure, all legislation regulating commerce, including a decision not to participate in a particular market, is an 'infringement on personal liberty.' But by the logic of Petitioners, even anti-discrimination laws are an "infringement on personal liberty" because they can be seen as a decision not to offer a good or service."
Switching topics. Off year elections are notoriously bad indicators for regular elections, but we are seeing an interesting pattern in that no one can predict what an angry electorate does. Major conservative ballot initiatives failed in OH and MS. A mix of Rs and Ds won in various state races. And most races were decided by fairly large margins. I think the electorate can best be summed up as "Angry Bob" from Pearls Before Swine. "Angry voters were angry."
Apparently, a contingent of Occupy Wall St folks are marching from NYC to DC. The Bonus Army returns! But whereas the original bonus army were demanding an acceleration of veterans pay, this bonus army is protesting (among other things) the giant bonuses the 1% give themselves. Wonder if they will frame it that way. Also wonder if it will pick up support as it moves from NYC to DC.