July 2, 2012

A second look at Jan Crawford's "Roberts switched views to uphold health care law."

Reading this article last night, I guessed that one of Crawford's sources was Justice Kennedy and that Chief Justice Roberts shifted his position in the process of writing about the question of severability (that is, whether to strike down the whole law if the individual mandate is unconstitutional). I reread the article today, and I want to highlight and stress 4 points.

1. Crawford never says that Roberts committed to a decision on severability. At the conference after the oral arguments, she says, Roberts voted with the conservative group that the commerce power did not support the mandate, but Roberts was "less clear" on severability. He assigned himself the opinion, and he followed through on the commerce power.

2. One of the sources describes Roberts as becoming "wobbly" by May and failing to adequately explain what he was doing. Once it emerged that Roberts would rely on the taxing power, there was "fair amount of give-and-take with Kennedy and other justices," that one justice described as "arm-twisting." (At least they weren't neck-wringing! (A Wisconsin joke.))

3. I see vanity as a motivation to talk to Crawford:
The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.
They didn't like Roberts getting credit for their work, and they didn't like getting called sloppy. It was a strange situation: Court observers were airing suspicions that Roberts had turned, which was (apparently, at least partly) true, but they were using evidence that was (apparently) not true, and that wounded the pride of the dissenting Justices who wanted it to be known that they really did write their own opinion and that they hadn't made careless mistakes. They want respect, it seems. And they don't like Roberts getting all the credit... or perhaps any of the credit.

4. The source(s) want it known that Kennedy, more generally, deserves a great deal of credit for his work over the years on the Court. Here, again, I see vanity, as Crawford — seeming like a mouthpiece — says:
Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.

That's not entirely fair to Kennedy....
Kennedy mocked as squishy? But Roberts went wobbly! I'm seeing a pattern to these protestations. I'm seeing a psychodrama here, with Kennedy feeling rivalry toward the Chief, who structured the decision in a way that would tend to draw admiration from many of the media folk who shower affection on Kennedy when he does the things they like. Kennedy — or somebody — seems to have wanted it to be known that it's Roberts' judicial demeanor and craftsmanship that deserves mockery.

88 comments:

Bob Ellison said...

Professor, I can't sound the level of snark in your post. Are you serious?

Occam's razor suggests that your supposition, snarky or otherwise, is correct. I suspect that it is correct.

Ann Althouse said...

"Are you serious?"

I don't understand the question.

Bob Ellison said...

Well, I mean "are you serious" in the sense that you're seeing a psychodrama, as you put it. Do you think emotions and personalities are really so much in play in the SCOTUS?

Dust Bunny Queen said...

Do you think the Justices ever wake up one morning and think. "Fuck it! I hate all these people I have to work with. Damn it, I wish I could just quit this stinking job."

Bob Ellison said...

Well, the Professor has fallen silent. She may speak up eventually. In the meantime, she has accused the members of the SCOTUS of being a bunch of bitchy teens. Who knew?

It's not a political institution. They live only to serve up justice.

rhhardin said...

Roberts is turning about an axis that's not aligned with his symmetry.

Jonathan Card said...

Every institution is political. This is the kind of politics, office politics, that it is probably most privy to.

Ann Althouse said...

It's an interpretation based on the available evidence, including my understanding of human nature.

I say "seems" and "apparently" strategically.

Bob Ellison said...

It's an interpretation based on the available evidence, including my understanding of human nature.

Wow. Nuanced. Can you put that in plain English for us non-liberal-arts folks?

leslyn said...

The sincerest form of mockery is--mockery. But who's getting mocked? I don't give a tinker's damn (whatever that is) about the agony and the ecstasy of Roberts' decision. It is what it is.

What's silly and childish are these SCt "leakers," who deserve to be pariahs for pissing in their own pants.

America's Politico said...

What I got from the SCOTUS was this:

-JR got scared. I do not blame him. The POTUS and WH was putting heavy pressure.

-Should JR vote against the health care law, then he will be seen as partisan.

-We will use the same technique with all voters. If they do not vote for re-election, then they are failing to understand America's racial past, etc.

-We are using every weapon at disposal. if we get additional %5 this way, then we have victory in the red states.

You see, we are invincible. Our heroes (David P., David A, and Jim M.) are playing chess while GOP is playing checkers.

chickelit said...

rhhardin said...
Roberts is turning about an axis that's not aligned with his symmetry.

His precession was undetected presession.

Marshal said...

The inner workings of the court is the least interesting aspect of the case. Imagine we're at a football game betting on the number of Officials' times out.

edutcher said...

I have a feeling the real story will be Mrs Roberts wanted to go to somebody's dinner party and they wanted ObamaTax to stand.

Kind of like Mexico losing the Texas War of Independence because Santa Ann was rockin' and rollin' with a slave girl while Houston & Co were bearing down on him.

Dread Pirate Roberts said...

I told you I was the Dread Pirate Roberts, but would you listen? Could you even take a hint? Noooo--instead you're whining and bawling about how I didn't go led about on your leash.

Now I'm your "traitor." Who died and turned you into the Constitution?

I've had enough of AK47 so I'm slapping him upside the head. Do you really think there's another leaker??

Alex said...

Bob - why so hostile? Of course the SCOTUS is a political institution. The human animal is political by nature, no matter which artificial construct you put him in.

traditionalguy said...

Yhe best Roberts apologist that I have heard is that he knew the commerce clause had already given away any Constitutional restraint on a National Dictatorship. This was forcefully expressed in a dissent prepared by Ginsburg.

So cute little Johnnie Roberts co-opted Ginsburg's argument by voting to give the USA away to horrible nationalized medicine and got her to let his majority opinion to base it's rationale on Taxing Power of Congress.

OK, Roberts is the winner of American Idol, while the middle class serfs prepare to die a miserable death with Cuban level medical care.

Alex said...

tradguy - we're a long way from Cuban health care. Ever care to tone down the hyperbole machine? Which day of the week do you slam George Z?

Saint Croix said...

Today, a mud wrestling spectacular! In this corner, the king of all media, the decider, the speaker for the universe, Captain Squish!

And his upstart challenger, the umpire, Chief Wobbly Rino!

And the two massive giants square off in the mud ring. They're already filthy and we haven't even start yet.

Wait. What is that?

It's a baby! A baby is crawling into the ring! Oh my goodness. How did she get there? Look out for the baby. Look out for the baby!

Oh my God.

Captain Squish has ripped the baby's head off. Just ripped it off and tossed it to the crowd.

Stunned silence. The audience is shock. People are refusing to look. Now they are walking out. A lot of upset people here at the Coliseum.

The fight is on. It's a massive authoritarian collision of ego and spite. And yet nobody actually gives a shit anymore. People are upset about that dead baby. Yes, the dead baby has taken precedence now. People are shouting at Captain Squish. Chief Wobbly Rino is smiling and waving at the crowd. No, they don't like him either.

We better cut to a commercial, Jack.

David said...

Bullshit begets bullshit begets bullshit begets lies and bullshit and then begets Bob Ellison.

Lem said...

This analysis sounds about right.

Well done.

Astro said...

Explain to me again how this is fixed by having 19 justices? That sounds like a formula to create 4 factions within the court and have 4 or 5 of the members be the wobbly/squishy ones occupying the gray space between them.

Peter Hoh said...

Oh, please. Roberts didn't vote the way he did to appease the White House or the DC social circles. If that were the case, the Citizens United ruling would have turned out differently.

The establishment GOP got the Heritage health care plan they wanted, and the only non-Democrat shouldering the blame is someone who will never stand for re-election.

Pretty smooth.

Blue@9 said...

It's an interpretation based on the available evidence, including my understanding of human nature.

Wow. Nuanced. Can you put that in plain English for us non-liberal-arts folks?


It means it's a wild ass guess, colored by some gut instinct and some edumacation.

(and I don't mean that as a criticism of the professor; nearly everything we know about this comes secondhand; we're at the mercy of the information gatekeepers, so our only meaningful participation is to decide whether we believe it or not)

rick said...

"Kennedy — or somebody — seems to have wanted it to be known that it's Roberts' judicial demeanor and craftsmanship that deserves mockery."

Robert's crapmanship deserves to be mocked. I am 61. I do not relish the thought of having my healthcare choices limited - not because I can't afford them - but because some ahole bureaucrat says so. The feds are already squeezing medicare payments because that system is broke.

If this stands, the elderly will be the first to go (so to speak). And you teachers who retired early with gold-plated insurance? Better learn to suck it up. Waivers aren't forever.

t-man said...

somebody — seems to have wanted it to be known that it's Roberts' judicial demeanor and craftsmanship that deserves mockery

No one needs to point that out - it is self-apparent in Roberts's opinion.

elkh1 said...

The Quantum Theory of Obamacare: it is simultaneously a tax and not a tax, depending on where the partisan stands. Obama has simultaneously won a huge tax on the middle class and lost the middle class.

rick said...

"The establishment GOP got the Heritage health care plan they wanted, and the only non-Democrat shouldering the blame is someone who will never stand for re-election."

Peter, do you really think the GOP wanted all these hidden taxes? And 15000 new IRS agents? And the new bureaucracy? A system that has doubled in cost BEFORE it has been implemented?

The Godfather said...

Isn't it time the conservatives stopped whining about John Roberts and got back to fighting Obama's reelection?

Bender said...

They didn't like Roberts getting credit for their work

Which brings us to Bob's first comment -- "I can't sound the level of snark in your post. Are you serious?"

Or in other words, what the fuck are you talking about?

"They didn't like Roberts getting credit for their work"?? What "credit"? Credit for what? Credit for an inane, irrational, duplicious ruling on the Tax Clause that practically everyone sees as laughable, and even the four libs who joined it had nothing to say about it except one or two lines saying that they agreed and, by the way, that made the rest of his one-justice opinion on the Commerce Clause complete non-outcome-determinative dicta?

SunnyJ said...

Read Jeffery Rosen article in The Atlantic from CJ Roberts interview over a year ago and just printed today.

Real insight into Roberts machinations (yeah who knew, Machiavelli has nothing on this ol'boy...though he likes to play the nice guy). It is apparent to me that their is a national epidemic of narcissism, gone untreated they have pursued every leadership position in this country and now rule with impunity...that or they are all stuck in Marketing 101.

In other words, if I hear or smell anything that sounds like "branding" again, especially with our Presidents, Government in general and now SCOTUS I'm going to puke.

...and yes, as Saint Croix alluded to, this fair and just meme is hell on the damn baby.

Lem said...

Isn't it time the conservatives stopped whining about John Roberts and got back to fighting Obama's reelection?

Roberts is only 57.. health permitting he could be in the bench another 20 years.. Apparently he reads his press.. so we got to let him know how much he botched this up.. maybe he wont do it again?

Bender said...

I heard about the Rosen article on the Mark Levin radio show, where it sounded like Roberts fancies himself another John Marshall.

Which brings us to the landmark case of Marbury v. Madison, where, like Roberts in the ObamaCare Tax decision, Marshall also completely distorted and purposely misconstrued the relevant statute in order to obtain the outcome that he desired.

Peter Hoh said...

Rick, I think the establishment GOP is okay with this decision. Overturning the ACA would have led to some unpredictable outcomes -- and would have increased the possibility that the Democrats would enact single payer next time they had the chance.

traditionalguy said...

The reality of National ObamaCare is that all Private Health Care Insurance is now on a death spiral until it's gone.

Every argument we hear is about how to best pay for today's level of private medical care by private Medical practitioners. Existing Insurance we can keep and its co-pays is discussed. But that is gone now and in its place is a Nationalized Dole to Government controlled quasi Junior MDs with civil service ratings.

Within 5 years the old private practice MDs who cared for their patients will be driven out and we will be left with cadres of Government Drones telling us what we statistically will and will not be treated for.

At least in Cuba the medical workers are Catholics and still show some mercy compared to incompetent, blind and deaf Federal computer regulated death drones that ObamaCare has set up, when we get to see them 6 to 10 months after we needed them.

edutcher said...

The Godfather said...

Isn't it time the conservatives stopped whining about John Roberts and got back to fighting Obama's reelection?

When did we stop?

Peter Hoh said...

Rick, I think the establishment GOP is okay with this decision. Overturning the ACA would have led to some unpredictable outcomes -- and would have increased the possibility that the Democrats would enact single payer next time they had the chance.

Can't tell it from what the Republicans say.

And the Demos were always going to use this as a stepping stone to single payer.

If they get another chance may be a very long time down the road.

Peter Hoh said...

Isn't it time the conservatives stopped whining about John Roberts and got back to fighting Obama's reelection?

Just remember, the other guy promised to appoint judges like Roberts.

Bob Ellison said...

Bender, I'm just searching for the truth. It exists, right?

Joe said...

I'm convinced it boils down to Roberts chickening out over the lack of severability and he didn't want his name attached to the law being thrown out. In the end he dishonored himself.

Peter Hoh said...

Within 5 years the old private practice MDs who cared for their patients will be driven out

Are there any of these left? My insurance steers me to physician practice groups. I.e. the private insurance system already seems intent on driving out private practice MDs.

Edutcher, there's a difference between the establishment GOP and what you see on TV. The establishment GOP has no problem with illegal immigration, for instance, which is why individual GOP politicians are able to sound tough on immigration, but the party never gets around to doing anything about it.

Methadras said...

The one thing that is not being said or talked about is, what did the majority say to Roberts that convinced him to come to their side?

rick said...

Spouse and I went to Belize (Amber gris Caye) this past Feb. Spouse, although warned , still contracted Montezuma's revenge. Very bad case ... passing blood. Asked our housekeeper where to go. Response? Go to the "free" health clinic in town. As it turns out, Belize has a national healthcare system. Scrambled to town. Not easy, as the only way is by water taxi.

Upon arrival at the free clinic, it packed - no available seats. It was also not very clean. The rest room towel was a towel ... to be used over and over again. Turns out it was pediatric day. All the babies/toddlers from the island were in for their "free" check up. The wait would have been hours. Found out their was a private clinic down the street.

When we arrived at the private clinic, it was just opening. The place was spotless. It was run by a female Cuban doctor who fled the Castro regime. The care was top shelf. She ran it like a business. After several IV's, two prescriptions and a VISA receipt, we were on our way. ((BTW, the doctor had the pills on site - talk about convenient.)

Afterward, as we were walking by the the "free" clinic, I told my spouse "we just saw Obamacare".

Matt said...

What bothers me most is how naive some conservatives are about SC judges. History is replete with politically appointed judges breaking from their 'base' when interpreting the constitutionality of an issue. Only recently have SC justices expected to toe the line and stay true to a pure political position. Earl Warren was a Republican governor. When he joined the SC he voted mostly liberal.

That's the beauty of being on the court. Provided you stay within the law you answer to no one.

Bob Ellison said...

Not dead yet.

PatCA said...

I don't get why it's a big deal that Roberts changed his mind. Of course he did, or he wouldn't have come out with this strange decision.

The question is, why did he. I don't think he was scared of Obama et al.; I think he just choked. He refused to be seen as a wingnut. It is hard to see how he can be taken seriously ever again.

Vanity. The simple, terrible answer.

leslyn said...

Bender said,

"Which brings us to the landmark case of Marbury v. Madison, where, like Roberts in the ObamaCare Tax decision, Marshall also completely distorted and purposely misconstrued the relevant statute in order to obtain the outcome that he desired."

Marshall may have gotten the outcome he desired, but he didn't construe or distort a statute. He didn't do anything with it.

What he did do was understand the position of the court: new, untested in its powers, and certain to be ignored by the new President. Rather than put the Court in the middle of a spat between outgoing and incoming Presidents, Marshall declared it all "political"--which it was. In exiting that dispute, he declared the Court's legal power, which fortunately has been nearly always adhered to since.

Marshall recognized the Court was in a position it could not win, and he devised a neat escape--which has been used by later SCOTUS's when necessary. He was an astute and wise man.

leslyn said...

PatCA said....

"He refused to be seen as a wingnut. It is hard to see how he can be taken seriously ever again."

I suppose you can't see your inherent contradiction. What you've just said is that Roberts will never be taken seriously as a non-wingnut.

God said...
This comment has been removed by the author.
God said...

sorry, fixed typos in C. M. quote:

"There is a lot involved here that does not meet the eye. A person is born. He goes to school. He learns what he is told in a book, and he lives his life by what he knows. The only thing he knows is what someone has told him. He is educated; he does what an educated person does.

"But go out of this realm and you go into a generation gap, a free law society. You get into insane 'swing-vote' interpretive manipulations... or smoking marijuana. And in this other world, the reality differs. Here experience only is the teacher. Here you discover there is no way you know the limits of the Commerce Clause or the extent of the taxation power unless you decide it, or unless the enlightenment rains on you from the C.J., or unless you jump in the river..."

Michael K said...

"When we arrived at the private clinic, it was just opening. The place was spotless. "

This is what you see in Mexico. There are three systems. The city hospitals are dumps where the family is given the prescription by the doctor to take to a pharmacy and buy the medicine. Then they bring it to the hospital so it can be doled out to the patient. There is Social Security, for those employed in offices. It is similar to Kaiser as it was 30 years ago. Then there are the private clinics which are cash only,

Saint Croix said...

Just remember, the other guy promised to appoint judges like Roberts.

What he actually said was...

I would have favored justices like Roberts and Alito, Scalia and Thomas.

Which was what we were all saying a week ago.

Gary Rosen said...

I am getting fed up with all these "insider" accounts of politics on the court - who likes or doesn't like whom, who dissed whom etc. It makes us feel oh-so-knowledgable and a little more smug to know that they are fallible human beings. But aren't SCOTUS judges, fallible or not, supposed to decide cases on the damn law, period?

Gary Rosen said...

"What's silly and childish are these SCt "leakers," who deserve to be pariahs for pissing in their own pants."

Right, leslyn, no one from the left has ever leaked anything other than a few national security secrets to the NYT. What the fuck is your point?

Ryan said...

"Once it emerged that Roberts would rely on the taxing power, there was 'fair amount of give-and-take with Kennedy and other justices,' that one justice described as 'arm-twisting.'"

I wonder what this arm-twisting sounds like. Does it sound like "You, Kennedy went along with a similar statutory interpretation in case X." Or does it sound like "this is going to be a huge public relations disaster if you don't vote with me." Some clerk or justice can provide vital evidence on whether Roberts actually believes his opinion or was just faking it for the sake of politics.

God said...

I'm sorry... but I DO NOT believe-- not for a moment!-- that:

(a) John Roberts took politics into consideration with regard his decision.

(b) John Roberts took vanity or popularity into consideration with regard to his decision.

(c) John Roberts took anything other than a genuine, authentic, historically-accurate interpretation of the Constitution into account with regard to his decision.

(d) John Roberts sacrificed his professionalism in any way.

(e) John Roberts is anything but an unbiased and extremely superb exemplar of jurisprudence.

These are my findings. If you dispute them, bring evidence, otherwise STFU.

Gavel! Gavel!

Adjourned.

Bender said...

Bender, I'm just searching for the truth. It exists, right?

Objectively, absolutely truth exists.

But that is completely irrelevant to an apparent relativist like Roberts, where words and texts and professions of intent have no real meaning. The truth is whatever he decrees it to be.

Chip Ahoy said...

I changed the Chip Ahoy idiomatic way of expressing supreme court.

The idea came by talking to a a 1%er acquaintance caterwauling about hateful Colorado Republicans and marriage. It seemed odd that a fellow of his station and of his own self esteem would look to government for validation.

I acted it out, as I do, relating to government as if it were down there from me, there not up there from me. A bug that had better watch its step or it will be stepped on. I exaggerated for dramatic effect.

That didn't go over.

But I still like the idea. So now for sc instead of success, index fingers at the corner of the mouth flicking up, then from there flicking again, then from there flicking again so that the arms are fully extended upward, which breaks the bounds of ordinary speech to the realm of what-are-you-doing-up-there? Instead of that, the opposite direction down. Success down. There is no such word so right off it's in the realm of what-are-you-doing-there? but then added to that flick down where the flick ends another flick, then another, so three double index finger flicks originating from the corners of the mouth to as far down as the arms will go, which on me is directly in front of my zipper. But on this Cuban guy I know with sort arms would be at his belly button. It took me a long time to figure out why that Cuban guy looked so weird. So there I've place the sc at a disrespectful location in relation to my own body, but at that point it's only success down three times, it still needs level, scales, and C group sign. The scales, again, acting as determinative for the C which could be council or congregation or any C related group word but with a scale then the C group word is definitely court.

So going to a higher court then means going to a lower court. A case going from state court to federal court is going to a lower court. If a case goes to the sc then that means, oh shit, now the lowest court of all.

Joe Schmoe said...

Marc Thiessen has a quick, interesting read in the WaPo about how Democrats appoint dyed-in-the-wool ultra-progressive justices (Ginsberg, Sotamayor, Kagan, Breyer) who never disappoint the left, while Republican-appointed justices are prone to flipping from conservative to liberal opinions.

He makes the fine point that conservative appointees are forced to be more guarded when discussing their legal and personal positions. As a result, the Republican presidents wind up appointing justices whose opinions aren't necessarily as conservatively doctrinaire as the progressives are.

He does allude to how the progressive judges still breeze through confirmation, which would indicate that Republican congresspeople respect a President's ability to choose a jurist for the high court as he sees fit. But starting with the Borking of Robert Bork, clearly the lefty congressfolk don't abide by the same rule.

If Obama wins another term and gets to appoint another justice, a Borking of a progressive nominee is in order, even if it's a woman or minority. If nothing else, the left needs to be forced to put forward squishy candidates of its own, rather than rabid partisans. Time to fight fire with fire.

pm317 said...

Old swing voter is jealous of the new swing voter.

edutcher said...

Wesley Pruden's latest column paints a portrait of Roberts as a sort of (erstwhile) Conservative Barack Obama, in love with his own press clippings.

It's OK. He will get his.

Judas sold out cheap, too.

Peter Hoh said...

Edutcher, there's a difference between the establishment GOP and what you see on TV. The establishment GOP has no problem with illegal immigration, for instance, which is why individual GOP politicians are able to sound tough on immigration, but the party never gets around to doing anything about it.

Which is why I say we need to purge the RINOs from the Senate, and the party.

That's what the Tea Party is for.

leslyn said...

Marshall may have gotten the outcome he desired, but he didn't construe or distort a statute. He didn't do anything with it.

What he did do was understand the position of the court: new, untested in its powers, and certain to be ignored by the new President. Rather than put the Court in the middle of a spat between outgoing and incoming Presidents, Marshall declared it all "political"--which it was. In exiting that dispute, he declared the Court's legal power, which fortunately has been nearly always adhered to since.

Marshall recognized the Court was in a position it could not win, and he devised a neat escape--which has been used by later SCOTUS's when necessary. He was an astute and wise man.


No, he was an arrogant self-seeker who arrogated to himself powers not given in the Constitution.

Lefties always love the Court when it walks on the Constitution.

damikesc said...

Waivers aren't forever.

...if it's a tax, how are they even legal? The Executive Branch can unilaterally decide that supporters are not required to abide by the law?

Romney should just say that everybody except union members and actors/musicians are exempt.

damikesc said...

and would have increased the possibility that the Democrats would enact single payer next time they had the chance.

That chance, of course, being "never again". The voters will never again give any party the power they gave the Dems in 2009-10.

History is replete with politically appointed judges breaking from their 'base' when interpreting the constitutionality of an issue.

Seems to only be an issue with conservative-appointed justices. Progressive ones are rock solid, lockstep automatons who you already know their vote before the first brief is filed.

Did ANYBODY doubt how Kagan, Sotomayor, Ginsberg, and Breyer would rule? Did anybody read their opinion and find anything REMOTELY enlightening and not just a painful cliche that they could've written themselves in a free app online somewhere?

t-man said...

G-d,

Why should anyone trust anything you say that you believe, when you obviously are not who you claim to be?

Jake Diamond said...

Isn't it time the conservatives stopped whining about John Roberts and got back to fighting Obama's reelection?

I don't foresee any time in the near future when this group of "conservatives" stop whining.

damikesc said...

...says the side who whined that a 5-4 decision would be partisan and hurt legitimacy...until that 5-4 decision went their way. Then it was brilliant.

Bob Ellison said...

I know a very smart, very careful lawyer who is in the "Roberts is an evil genius" crowd. It's a compelling argument. Time will tell.

My analysis is simpler. Stupid decisions can have awful, long-sustained consequences. Roe, Plessy, etc. The commerce-clause depredation will not matter, and the law-re-writing will, unless and until the SCOTUS re-reads the Constitution and discovers and respects limits.

cubanbob said...

CJ Roberts failed miserably if he thought this stunt would bring respect for the court. Its obvious and crass sophistry is enough to piss of any thoughtful person from either side of the political spectrum. Words have no meaning, and existing legislation that would govern this have no meaning.

He said its a tax, but doesn't define what kind of a tax. Fair enough but then he should have punted the matter as per the anti-injunctive act and when the tax goes in to effect have the lower courts make a determination if the tax is a permissible tax and let it go through the normal judicial route. Had he done so, the law would still be in effect but leaving open the possibility of it being struck down on a permissible tax issue and given the amount of time the legal process takes it would have let the political system deal with this prior to it reaching the court. But no, he had to be too clever by half. He could have stricken the law on the severability issue, no matter what side on the fence you are on, its inexcusable to uphold a bill that has no severability clause if part of it is deemed unconstitutional. If congress doesn't know what severability, tax and penalties mean it has no business making legislation.Legislating by chicanery is so fundemantally wrong it shouldn't need to be even discussed. Again he could have stricken the bill down as unseverable (due to the tax question) without making a determination on the underlying issues.

Instead he has produced an ugly decision, devoid of any logic and brings disrepect to the court. The notion that congress has limits to what it can regulate under one clause, commerce, but nevertheles can tax that which it cannot regulate is offensive indeed. He should be rightfully scorned for this and no amount of spin can or will change the oprobium he has brought on the courts and on the legal system. When you split a baby in half, you get a dead baby.
Roberts has brought shame and scorn on the court and the legal proffesion.

Hagar said...

The reality is that the AHCA is now a revenue bill and DOA at its next appearance in the Senate, which will be coming January, or February at the latest. And they all know that.

And I do not think that Roberts expanded the taxing power. That power was there, and in any case, Roberts' decision only applies to this case, which can always be distinguished from any other case.

Jake Diamond said...

says the side who whined that a 5-4 decision would be partisan and hurt legitimacy...until that 5-4 decision went their way.

As I said before, there's no evidence that the "conservative" whining will end anytime soon.

Colonel Angus said...

I'm not sure why Roberts is a conservative turncoat because of his vote. He aptly called it a tax which is why the Obama Administration wants to move on to talk about something else.

I think many of ya'll are missing the bigger picture.

Bob Ellison said...

Colonel Angus, you're right. It's a head tax. We should call it that. Loud and proud! And new.

Colonel Angus said...

Roberts has brought shame and scorn on the court and the legal proffesion.

Oh dear. My friend, that was accomplished long before Roberts donned the black robes of a justice.

Colonel Angus said...

As I said before, there's no evidence that the "conservative" whining will end anytime soon.

Both sides whine when a SC case doesn't go their way. I can still hear the echoes of liberal wailing over Citizens United.

Don't kid yourself thinking your team demonstrates some kind of stoic resolve. The Occupy movement that liberals embraced was nothing but a year long circle of tears.

Nathan Alexander said...

I think Roberts ruled with his intellect, based on his understanding of the US Constitution and the federal govt system, as it has developed from previous court rulings.

I do not think he gave in to pressure from the Left, or worries about posterity, or concerns about the legitimacy of the court.

I do not think he has "gone wobbly." This will be obvious in future rulings.

I do think that things may not play out the way he intended...no battle plan survives contact with the enemy. But I do think that too many conservatives are freaking out unnecessarily.

I also agree with Ms. Althouse that opinions on the brilliance or wrong-headedness of the decision (whichever it turns out to be) are immaterial. The decision is made. This is what the US Constitution means. The call has been made, and no amount of bitching or praising will change it.
Let's wait and see how CJ Roberts will build on this ruling in other cases that are rising through the court system to the SCOTUS.

Let's wait and see which justices need to be replaced by President Romney over the next 8 years, if he does well enough to get re-elected. We have a good chance to end up with a solid 6 or 7 originalist Justices before his 2 terms are done. If a number of liberal activist bs rulings get overturned by the Roberts Court in the future based on the Commerce Clause, this ruling will be seen as the turning point.

But all the bitching and moaning from conservatives are just spoon-feeding the liberal Justices (the most recent two are clearly not all that judicially smart) the arguments they would eagerly glom onto as they seek any rationale to ignore the US Constitution to rule by fiat for their desired liberal outcome.

Things could still go wrong. If President Obama cheats his way to re-election, he could end up naming enough Justices to get a 5-4 liberal activist court. But the Roberts ruling certainly energizes conservatives to make sure that doesn't happen.

My point is: don't rush to judgment. I guarantee everyone's view of this ruling will be different 10 years from now.

Jim said...

Consider the possibility that Kennedy is upset, now that C.J. Roberts has usurped the title of Most Powerful Man In The World, by becoming the new swing vote.

Interestingly lost in this is the principle of the thing. Now that the notion of enumerated powers limiting federal government has been killed off, I wonder where Congress goes from here. Perhaps they can impose a tax on people who do not do enough crunches, jog far enough, or eat their annual quote of broccoli.

Jake Diamond said...

I can still hear the echoes of liberal wailing over Citizens United.

Liberals weren't the only people complaining about Citizens United. I guess you overlooked that fact.

BarryD said...

Siding with the liberals on social issues, as Kennedy sometimes does, can be upholding the rights of individuals. Conservative social issues tend to be about using government force against individuals, for private acts.

Blasting Kennedy for siding with the liberals in Kelo v. New London, however, was a different sort of criticism. Here, Kennedy was the deciding vote against the libertarian/individual rights side. Ironically, perhaps, the liberals voted as a bloc to allow large corporations to use government force to seize property from private citizens. The idea that some liberals have that their "side" is about protecting the little guy from big business and the rich and powerful in general, is naive.

But... Much as I loathe the Kelo decision, and Kennedy's decisive role in it, I don't think he did it for attention.

I have no idea what motivated Roberts. Maybe it was severability. The "conservative" side may have wanted to throw out the whole bill, to be sure. But the "liberal" side wanted to keep it. Surely Roberts could have brokered a deal, here.

It does seem to me that the best solution, and the one that fell best in line with Roberts' supposed "umpire" philosophy, would be to red-circle parts of the bill that aren't constitutional, and leave the rest alone. Let Congress sort it out. It's not the court's place to figure out whether the rest of the bill "works" or not, without the stricken parts. This is SOP for many large bills, too, so it's not exactly a radical thing to do.

That would have pissed off both the right, that wanted the Court to deep-six the whole bill, and the left, that wanted the bill. It would, however, have done more for the Court's legitimacy, as well as the Court's public image, since it does appear that the American public does like some provisions of the bill, but not all of them.

Why he did what he did, instead of the above, is very difficult to say.

The dissent, however, was a much clearer argument. Even the guy who thought it was okay to seize Suzette Kelo's house on behalf of a real estate developer thought so, when at the time both liberals and conservatives thought that the logic was a real stretch. I don't think it would take a psychodrama for Kennedy to be angry.

Hagar said...

The AHCA now is "for Congress to sort out."

(I would like to see the whole thing thrown out plus all that they already have done to "regulate" the insurance business, but I am afraid that will be too much for the "establishment." They are going to want to "replace" and come up with their own "Republican plan," because that is what the NYT and WaPo say they should do.)

And in the Kelo decision, I believe the City of New London was the evil "corporate developer."

BarryD said...

New London had to execute the eminent domain seizure. They did it on behalf of developers, for private use, not public use. That was the whole point of the case.

"I would like to see the whole thing thrown out plus all that they already have done to "regulate" the insurance business"

Me, too, but I'm not ranting about my personal preferences, since that's not what's at issue here.

cubanbob said...

Bob Ellison said...
Colonel Angus, you're right. It's a head tax. We should call it that. Loud and proud! And new.

7/3/12 8:31 AM

President Romney and the next congress should take that position. Since head taxes apply to all that would eliminate the waivers and the excepted class. Then let the left sue to determine its not a head tax leaving the court with the tar baby of deciding if it's an income tax thus leaving congress no choice but to make the insurance premiums (the tax) deductible or face a lynching. Or if it is not an income tax, then its a tax on an action, thus negating the penalty for inaction. Otherwise it because the absurd spectacle of requiring non-smokers to pay the cigarette sin tax.

Or the next congress can based on Nestor restrict the excepted class to the point of making the ACA a meaningless shell if they are not able to repeal this monstrosity.

Bob Ellison said...

Jim said...
Consider the possibility that Kennedy is upset, now that C.J. Roberts has usurped the title of Most Powerful Man In The World, by becoming the new swing vote.


That seems to be the Professor's original supposition. It's a scary concept. It undermines our notion of the American judicial system. It may be correct.

deborah said...

Good post, Nathan Alexander.

stan said...

Prof,

Stewart Baker at VC has connected the dots to suppose that someone on the left side of the court leaked to Dem politicians, pundits and profs that Roberts could be influenced. The weird lobbying campaign makes no sense otherwise.

Note -- the nugget here is not the leak, but that it tells us that the left side saw him as weak and that he could be bullied.

Clearly this latest leak and the opinions themselves show that the right side has lost a lot of respect for him. Seems like he's managed to lose everyone's respect. On the court and off.

Steve Koch said...

I don't think Roberts is a fraud, or at least not a total fraud. Roberts' judicial philosophy seems to be to defer to congress unless the law in question is clearly unconstitutional and for the judiciary to not create new laws/rights (ala abortion rights). That philosophy seems OK.

The devil is in the details. ObamaCare was sloppily crafted, incredibly complex, with no provisions for severability (i.e. it was all or nothing).

Roberts found the bill as written to violate the constitution because of the mandate. He could either fix the bill so it could be totally accepted, reject it entirely (because there was no provision for severability), or he could reject the unconstitutional parts and pass it back to congress to fix it.

Roberts had no right or mechanism to rewrite the bill (that being a legislative function) so he had to either reject the bill entirely or mark the unconstitutional parts and pass it back to congress to correct and repass the corrected bill via the normal legislative process. He had no constitutional right to rewrite the bill (turning the mandate into a tax).

Roberts is right (in general) to defer to congress. His mistake was to defer to a specific congress re: a specific flawed bill rather than defer to the law making process of congress that transcends individual congresses. Roberts should have acted as a technician, marked up the unconstitutional parts of the bill and sent it back to congress to fix. My guess is that the lack of a severability clause caused Roberts to panic and make an unforced error.

Steve Koch said...

"I also agree with Ms. Althouse that opinions on the brilliance or wrong-headedness of the decision (whichever it turns out to be) are immaterial. The decision is made. This is what the US Constitution means."

I could not disagree more. It is sad and pathetic that a constitutional scholar thinks that the meaning of the constitution changes radically depending on who interprets it (such a constitution would be essentially meaningless and useless). The constitution has an explicitly defined mechanism for changing the constitution (amendments), judges do not have the right to change the constitution.

"The call has been made, and no amount of bitching or praising will change it. Let's wait and see how CJ Roberts will build on this ruling in other cases that are rising through the court system to the SCOTUS."

Don't understand the hurry to terminate the discussion. Obviously if you don't want to discuss it, that's your decision, but why should other people stop discussing it?

Roberts' decision was shocking, seems incorrect, and will have enormous impact on the USA so it is fitting and proper that we discuss it until we understand if it was wrong, why it was wrong, what went wrong, and start to figure out how to fix our broken judicial system.

Steve Koch said...

Alex said...
"Of course the SCOTUS is a political institution. The human animal is political by nature, no matter which artificial construct you put him in."

The supreme court was designed to be as apolitical and technical as possible. The objective was that the supreme court would act as a group of legal technicians who would make sure that laws complied with the constitution without distorting the constitution by interjecting their own personal prejudices. Even Hamilton recognized that if the judiciary became politicized, it would be a disaster for America.

It is not OK that the supreme court is politicized and we have to figure out a way to depoliticize our judiciary as much as possible. Man has been able to construct systems that transcend the weaknesses of individual men and we need to focus seriously on improving the judicial process. Too bad that constitutional scholars have been such an abject failure.

It is appropriate to strenuously criticize the supreme court when they act as politicians rather than legal technicians.

Joe Schmoe said...

I'm reading lots of lefties (other sites, mostly newspapers and some opinion blogs) speculate that Roberts' decision was based on his desire to avoid further escalation of attacks on the court by lefty media shitheads.

I don't really speculate on his motives. We'll likely never know the whole story, unfortunately.

What I don't like is the left saying he did this because he's scared of them. What they hope is the reason is not necessarily the reason, and I hate how they are trying to create, out of thin air, some power over future decisions. And of course their divination of events just happens to prominently feature themselves.

Joe Schmoe said...

Nathan Alexander, I like your post. But I'm going to stew in my indignation a little longer. This one pissed me off more than I thought it would. Hopefully this does alter future decisions to not only check but diminish an overreaching federal government. But to me, that's a mighty crapshoot and it could go either way over the next 10 years.