Said Judge Richard Posner.
(Via AlphaLiberal.)
ADDED: Posner is admitting that there is a psychodynamic among judges that affects how judges decide cases.
IN THE COMMENTS: YoungHegelian said:
Because, when you're a grown man at the top of your game, like Chief Justice, and you screw up big time, and your friends of long standing tell you "John, you screwed up big time," what you do is go find another bunch of friends who'll kiss your ass every time you screw up big time.What if the other bunch is the cool kids?
AND: Remember when Laurence Tribe advised Barack Obama about how Elena Kagan might have some "purchase on Tony Kennedy's mind." (I said: "I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain." But there were always other mountains to climb.)
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75 comments:
Posner has been a hopeless asshole for a long time. Remember this recent foray into judicial-branch legislating?
But so-called "progressives" get their little pricks stiff when they smell a CONSERVATIVE APOSTATE! WOO HOO!
Yes he should reexamine his position and never rule using sophistry again.
Soon, AlphaLiberal will inform us that noted conservative Andrew Sullivan thinks Obama is awesome!
Posner sure is a whiny little bitch isn't he? "If you hurt my feelings I'll vote against you" doesn't exactly increase a court's perceived professionalism.
Perhaps he should resign in shame for his treason and dedicate his life to trying to make up for removing the Constitution as a check on federal power?
Orion
And David Brooks and Peggy Noonan too!
The conservative movement is imploding!
Posner is admitting that there is a psychodynamic among judges that affects how judges decide cases.
Posner demonstrates that simply by existing.
Because, when your a grown man at the top of your game, like Chief Justice, and you screw up big time, and your friends of long standing tell you "John, you screwed up big time", what you do is go find another bunch of friends who'll kiss your ass every time you screw up big time.
Because nothing says confidence like surrounding yourself with Yes-men.
So why isn't Posner able to entertain the all-to-simple notion that between the ever-liberal-never-deviating block of Ginsberg/Breyer/Satomayor/Kagan and the block of conservatives who, you know, actually swing to the ever-liberal-never-deviating block from time to time, Roberts' might simply be wrong?
And that lots of conservatives know that he's wrong?
And are, unsurprisingly, outraged by the effect of his legislating?
Why is it that conservatives are told to shut up and sit quietly in the corner while the Left institutionalizes looting the nation's wealth and curtailing personal liberties in the name of social justice?
In short, what the fuck is wrong with Posner?
So Justice Roberts' tortured logic had nothing to do with the outcry?
Oh, yes, it is Roberts who is the innocent victim here, it is the friends of Roberts who turned against him, not the other way around.
Of course, should he "re-examine [his] position" simply because people have objected to his disingenuous fraud would merely confirm that he is a hack POS to begin with.
Betrayal entails a massive loss of trust.
You don't regain it by simply showing up, or even by apologizing. It takes years of effort.
And changing your friends because of you betrayed is proof of your mendacity.
Why your new friends trust you is unclear.
Of course, how the hell would Roberts know about the reaction to his sleight-of-hand despotism? He ran away to Malta laughing about it. The guy did not have the intellectual courage to listen to or read the overwhelming objections to his fraud.
I guess Johnny had his feelings hurt when those nasty conservatives told him that they remembered that long time ago back in the day when they went to law school they were taught that words have specific meanings. Terms of the art. Silly things like a tax means one thing, a mandate means another and a penalty yet still another and enumerated also means something. Roberts is stupid as only a very smart person can be when trying to square a circle. The boys must have called him on that.
My assumption is that CJ Roberts followed the logic of the law. I like to believe most of the justices have integrity, whatever their decisions. Unless there is a preponderance of evidence indicating bad faith, they get a pass for their votes from me.
I know, I know. Pollyanna. Shrug.
Why do people assume the leaks are from the conservative side? Do they suppose that discrediting Roberts somehow benefits conservatives and conservatism.
It is more likely, and certainly more in character, for the leaks to have come from the lefties seeking to drive in a wedge for the future.
Geez Richard--are you talking about the mean girls in the high school clique?
Grow up and get an intellectual pair before you write again. Right now you're looking like a silly little high school girl.
Roberts knew exactly what he was doing and knew, generally, who would scream like little girls. I doubt he cares much what the "leakers" or what Posner think. He's basically untouchable as CJ. He might not have FU money, but he's got FU power. Posner knows that, and I am surprised he thinks Roberts is so delicate.
Roberts had a policial problem wrapped in a consititutional ribbon. He cut the ribbon and sent the unwanted gift back to Congress. Or, stated more crudely, Congress threw a turd in his pond and he picked it up and threw it back.
The losers are the ones who whined "Save me, John Roberts! Save me!" Screw that -- save yourselves ya damn whiners.
The cheating husband is forever annoyed that his wife won't stop checking the receipts and the phone bill.
phx said...
My assumption is that CJ Roberts followed the logic of the law. I like to believe most of the justices have integrity, whatever their decisions. Unless there is a preponderance of evidence indicating bad faith, they get a pass for their votes from me.
I know, I know. Pollyanna. Shrug.
7/6/12 1:18 PM
The fatal error is that laws passed are presumed constitutional by the supreme court. The course should always be a skeptical one since to get to the supreme court there must have a been a challenge worthy enough to pass the lower courts. Thats why they are the supremes, it ain't over until they say it is so up to that point why presume that congress got it right to begin with?
"Screw that -- save yourselves ya damn whiners."
Yeah, why should he dirty his pretty little hands?
"I mean, what would you do if you were Roberts?"
Judas had the decency and good grace to hang himself.
I remember when David Wolper made a 3 part adaptation of the William Shirer biography of Hitler, and, to publicize it, Shirer did an interview with TV Guide and quoted an interview he had done mit Der Fuhrer, "Every man has his price and you'd be surprised how low it is".
Roberts is just finding out how low his price was.
He's also finding out nobody likes a betrayer.
As someone who calls himself a Catholic, he should have known that.
Why your new friends trust you is unclear.
They are not friends, in that case. They simply know they've got you where they want you.
And didn't the professor assert a few days ago that the courts of law drill down into matters to see what's really going on? Would that discipline ameliorate the judicial psychodynamic?
"hombre said...
Why do people assume the leaks are from the conservative side? "
Because of who the leaks were to. Ramesh Ponnuru of National Review is on tape in early June predicting the exact circumstance: Obamacare upheld with Roberts instead of Kennedy siding with the leftists. Crawford, who wrote the first "leaker" piece, had previously interviewed Thomas who referred to her in a positively.
Who was it who said: if you want a friend in Washington, get a dog?
“I’ve become less conservative since the Republican Party started becoming goofy,” Posner said.
I don't think Posner should be interpreted as saying that he's become more Liberal, and certainly not more Leftist.
Posner has always been regarded as a moderate libertarian, hasn't he? And so you could read that as the mainline of the Republican Party has become more authoritarian and corrupt, he's drifted off to the side.
Consider, i.e., Posner's recent attack on software patents, deriving from his judging the Apple/Motorola dispute. In that Posner is staking out a strong, definitive legal position, he is acting in a way similar to way Roberts did with regard to Obamacare.
The problem? These strong, definitive legal positions piss off a lot of people... of both parties! Lots of big corporations have paid lots of money to make sure that, if there are going to be software patents, then they will be big-corporation friendly. Screw the small company! In fact, it's gotten so bad that you can't start a small software company now without total paranoid over insane software patents; if you become successful, the gangsters like Nathan Myhrvold will do whatever they can to extort money from you... all using the structure that corrupt Republicans and Democrats put into place. It's totally out-of-control. And it's also an excellent example of a issue hindering American economic growth that neither Presidential candidate will do jack squat about.
Posner recognizes that this is a terrible and ridiculous situation. Has he driven into the philosophical ditch, or has America? I think he would say America has.
what do you do if you were Roberts
Of course, we are not Roberts, we have integrity. But setting aside that condescending presumption here of "everyone distorts and twists and lies" like he did, what would Roberts do if he did have any integrity?
He would resign. He would say, "I have done grievous harm to the country, to the Court, to the Constitution, and to the rule of law. It is a harm that cannot be undone short of overruling the newly-created precedent, which cannot happen without a new case being brought to the Court, which may or may not ever happen, and even then the opinion will remain forever in the books. Thus, since it is completely impossible for me to ever redeem myself, I resign."
But since Roberts lacks such integrity, that will never happen.
_________________
Related question though -- should Romney be elected, should he ask Roberts to administer the oath or ask someone else? (Remember with the Obama inauguration, Roberts decided to give his own version of the oath of office, rather than what the Constitution specifies.)
Given the number of leaks (there were reports that right after the justices voted in conference, before Roberts's switch, law firms in Washington knew that the Medicaid expansion was out), what I have come to believe is that there were always leaks to other "insiders" (who could profit from advance knowledge of decisions). The difference here is that the stakes were so high, the leaks made it beyond the insiders.
I suspect that all government information that has a substantial effect on the market leaks to privileged insiders.
"lunatics" "goofy" "crackpots"
Is it possible that The Crack Emcee is actually Judge Posner?
Probably not but Judge Posner owes us an elaboration on his accusations.
Posner problem is that he he thinks he is the smartest person in the world. He would jettison every libertarian instinct and name himself god-emperor if he were given the chance.
Here's another interesting perspective on Posner from Bloomberg. Writer claims that as Rightists have refused to reconsider their economic dogma, Posner, being more mindful, has been shoved to the side.
T-man,
It would be a scary world indeed if Posner was dictator. He walks that very thin line between genius (there's that word Althouse doesn't use) and insanity.
"I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you...""
This can happen to a guy if he is determined to stand on his principles no matter what the consequences. Or he's a complete douche.
I'm going with number 2.
Shorter Posner: "Conservatives, shut up and bow down to power."
Why is there so much anger at Roberts in these here comments?
Seems to me that Roberts only made the Constitutional interpretation that he believes to be accurate.
He didn't write the Constitution. Nor did he write the Obamacare Act.
Roberts just disregarded politics and did his professional job.
You shouldn't blame the guy who just says what it says!
Judge Poseur?
Roberts is a silky pony in his own right.
Seems to me that Roberts only made the Constitutional interpretation that he believes to be accurate
Then why did he alledgedly write two opinions with opposite outcomes?
Was he waiting for Kennedy to uphold the law and panicked when Kennedy didn't budge. How do we know Roberts doesn't have FU money now?
This is mountain out of molehill stuff. Roberts doesn't think he screwed up. He considered the issues carefully and came to what he believed (and believes) to be the right conclusion. He's a big boy, and he can take the criticism. The dissenters are big boys, too, and there will be plenty of cases next term where the five will be back on the same side.
But there are a lot of whiners in these comments.
God: Don't be a tool. The "goofiness" that Posner is on about is because the GOP has become *more* libertarian, and less authoritarian. Posner and his ilk were always more academically "libertarian" than actually libertarian - libertine jackasses who thought it sounded cooler and more principled if they claimed to be capital-L "Libertarian".
Sort of like all those Eighties skater-punk dickwads who claimed to be "anarchists" without having any real grasp of what that meant except being against The Man, man.
Isn't this the Posner who thought he'd be cool if he started giving lectures on Second Life? Pompous ass, pretending to be a dot.commie and failing miserably.
This reveal much about the philosopher king Posner?.
He considered the issues carefully and came to what he believed (and believes) to be the right conclusion.
Why should anyone give Roberts the benefit of the doubt and presume that he acted in good faith?
In his opinion, Roberts himself accuses Congress and the President of duplicity and a lack of good faith in continually insisting that it was not a tax when, in the secret recesses of their minds, according to Roberts, they actually knew it to be a tax.
If we hold Roberts to the same standard that he held Congress and Obama, then he is owed no deference, no presumption of good will, no benefit of the doubt.
If fraud and dishonesty are now constitutionally permissible under the Taxing Power, then it is perfectly fair to (rightly) point out the fraud and dishonesty in Roberts' opinion.
I like Posner a lot, but we should understand this is more about Posner than about Roberts. Posner is made uncomfortable by conservatives. Not just snake-handling redneck conservatives. UofC-faculty-type conservatives (not that there are any anymore). And so he says things that are ridiculous, like his suggestion that a few snippets from a dissent by Scalia could end up in political ads. That was coupled with his insistence that Scalia should have cited the record for the statements he made, when all the statements followed from the statements in the majority opinion from Kennedy. When you can't count on Posner to have done the reading, you start worrying that he's slipping.
Oddly, I find myself thinking of Edmund G. Ross, the Senator from Kansas who was the crucial decisive vote against convicting President Andrew Johnson at his impeachment trial.
Ross later recalled the moment before he said the words "Not guilty": "I almost literally looked down into my open grave. Friendships, position, fortune, everything that makes life desirable to an ambitious man were about to be swept away by the breath of my mouth, perhaps forever."
Ross, of course, was one of President John F. Kennedy's "Profiles in Courage" (unless you want to be a total scold and say it was really Theodore Sorenson's book). But I wonder if, faced with a similar situation, I could summon up one-tenth as much courage.
The idea that Roberts would abandon his conservatism because of what people say about him is idiotic. His sense of what he is doing is perfectly consistent with conservatism itself, and his critics from the right only prove how superficial their conservatism is in comparison - and, frankly, how statist they actually are. They wanted the Court to impose it all for them. Too f***ing bad about that. They will actually have to win the argument now, won't they? They should be thanking him for that, and it is pathetic they do not see that. But the idea that Robets is so other-directed he would reshape his ideas out of terror at their disapporval is laughable. What makes anyone think their approval is worth a thing?
"his critics from the right only prove how superficial their conservatism is in comparison - and, frankly, how statist they actually are. They wanted the Court to impose it all for them."
Nonsense, Roberts' rightist critics want the constitutional limits of government (as they understand them) enforced. If you believe there is no difference between a court imposing a law and ruling one constitutionally improper you're constitutionally illiterate. And if you're making a normative argument you're advocating the end of constitutional government.
One role of the court is to enforce constitutional limits. Performing that function is not statist.
Bender, you say
"Why should anyone give Roberts the benefit of the doubt and presume that he acted in good faith?
In his opinion, Roberts himself accuses Congress and the President of duplicity and a lack of good faith in continually insisting that it was not a tax when, in the secret recesses of their minds, according to Roberts, they actually knew it to be a tax."
Read the opinion, not what some commentator says about it. You'll see that your description of Roberts' opinion is incorrect.
MisterBuddwing said...
And in the end, it was a colossal mistake. Had Johnson been impeached and removed perhaps things would have work out better in the end.
As for Roberts, he to effed up big.
He did not have to bow to congress, they are big boys as well. He simply could have struck this pile of garbage on the tax grounds by stating congress knows what a tax is, congress could have written it as a tax bill and called it a day. Since it isn't clear what kind of a tax it is, he may have inadvertently open the door to challenge it on the grounds it may not be a permissible tax.
Oh man, is my friend ever halarryus. But I'm tellin' ya if we keep hanging together he's gonna get me in sooooo much trouble.
He finds a skunk that been hit by a truck and we couldn't even get near it. But my friend gets it up into a big plastic bag for leefs with a stick and ties it all up but it stanks, ew Lordie, it stanks. And I go I know the perfect place we can toss this here sack of stinkin' skunk. You guessed it. Althouse! Hahahahahahahaha uuuuup hahahhahahahaha uuuuup ha ha ha ha ha. ha.
ha.
People who worry about what others think of them are not prime candidates for the Supreme Court.
The "Scales of Justice" are heavy.
The addition of your little knapsack of social acceptance was never meant to tip a thing... besides your own shoulder.
If he is truly without integrity, then he will defend his support of involuntary exploitation, of course. If he has a sadistic streak, then he will obfuscate and lie in order to promote progressive corruption of individuals and society. He will not, however, address issues of merit, and causal conditions for progressive cost increases and reduced availability of medical services. Perhaps he will call for amnesty of millions of illegal aliens further displacing American citizens and legal residents, and disenfranchising the first.
There is a lot he could do, but his swing to the left has not been confirmed to be terminal. Since we cannot divine his intentions, we will assume that classifying this latest marvel of selective involuntary exploitation as a tax, was, perhaps, intended to awaken the ire of American citizens who hesitate to exchange their liberty for submission with benefits.
I'll assume that these generational "progressives" are incapable of judging a reasonable compromise between reality and individual desire for instant gratification. I'll further assume that they are not motivated to exploit opportunists and the vulnerable in order to consolidate wealth and power through redistributive and retributive change, as well as advancing behaviors which engender evolutionary dysfunction. For if these assumptions fail to materialize, then the only remaining explanation is the American left wholeheartedly embraces principles of involuntary exploitation and devaluation of human life.
Posner needs to reevaluate the principles that guide his life. His philosophy is progressively incompatible with the preservation of individual dignity and evolutionary fitness for all but a select few. He needs to reject the mortal gods he places upon pedestals before all other human beings.
Speaking of mortal gods...
How bout that chip ahoy!
Leading the way from "Good Will Hunting" to "Dead Skunk Hunting"!
Cowards die a thousand times before their death. The valiant never taste of death but once.
Oooh, creepy thinking about death having a "taste".
Posner isn't giving any reasons to admire him either. WTF!?
Maybe term limits are required and they should be set at 10 years. After that get out and do something useful.
But if it DOES have a taste?
I'm thinking it tastes way too much like hospital food.
Roberts fucked up in a way that fucked this country when he didn't have to. He had the death of Urkelcare right in his hands and he snatched defeat from the mouth of victory. He should be derided and railed against for this colossal mother of all fuckups. All Posner did is highlight that judges and justices are all susceptible to criticism from outside their domains. Urkel knew this and he and his cadre attacked the court which influenced Roberts. This is truly clear as day now and it is beyond reproach. Frankly, I think he should resign, but only after Romney wins.
The number of years in the IDEAL term limit is directly proportional to the number of people who want to go to jail without passing GO and without collecting $200.
When you're a grown man at the top of your game, like Chief Justice, and you screw up big time, and your friends of long standing tell you "John, you screwed up big time," what you do is go find another bunch of friends who'll kiss your ass every time you screw up big time.
What if the other bunch is the cool kids?
If they'll accept his fucked-up ass, they can't be that cool,...
leslyn said...
Methadras:
You wanted a political decision and you got a judicial one. Too bad. The SCt does not exist for your pleasure.
No, we got a legislative decision that spanned a two year debate, required bribery to legislate, was never read, and was passed in the middle of the night. It was widely perceived and rightly so as being an unconscionable piece of legislation that would onerously place an undue burden on 290 million people for the benefit of 30 million who don't care, don't have money, or would otherwise be on a parasitic drain on society as a whole anyway. It's a regulatory piece of chaos that is still yet to be defined by as dictated and the SCOTUS deemed it a giant piece of tax legislation. However, know one knows what tax is falls under and yet gives congress the power to now tax inactivity as they see fit under any purview they deem necessary.
I wasn't expecting a political decision, I was expecting the right decision, but ended up getting a political one instead. Roberts fucked up, everyone knows he fucked up, and now everyone knows he can be bullied and be behaviorally modified with the right stimulus of pressure put upon him and the court. The court doesn't exist for my pleasure, because I would hope that it exists to uphold the freedoms and liberties for the American citizen as written by the Constitution and any legislation coming before it is gauged against it. It was DOA, Roberts knew it, the 4 dissenting justices knew it, but because Roberts become politically compromised and saw fit to assuage his ego and somehow preserve the independence of the court, he came up with this travesty of an opinion written and shaped to look like a crafty, nuanced reason for why this 2000+ page tax increase is worthy of passing constitutional muster. He basically looked like the dog in the circus act willing to jump through a myriad of flaming hoops to get to abomination of legislation we have now and yet your enfeebled mind thinks this is a great thing.
I'm going to laugh at you when it collapses around your head as an unsustainable piece of used toilet paper that it is. Outside of that, I'd hope that you die in a fire.
"If they'll accept his fucked-up ass, they can't be that cool,..."
Excellent point, Crack!
Can't wait to see you "polish" it off... without a polka. ;)
An accordianist in the room?
No?
How bout a squeeze boxer?
Lines forming to the right >>>>>
Judge Posner is big friends with Brian Leiter, so obviously his standards for civility and sanity are some what different from those of most people.
What? No commentary on the illegal non recusal of Kagen? Are you that dense?
John Roberts is currently in position similar to Benedict Arnold after West Point. Keep in mind that Arnold was a hero to the Revolution, instrumental in a number of hard-won victories and severely wounded in battle. But in his mind Arnold struggled between the cause of American independence and personal recognition. In the end, in one fateful decision he joined his former foes.
We are not in a shooting war and John Roberts need not fear the noose, but he does share a problem with Arnold. The Americans made Arnold’s name synonymous with treachery and the British didn’t trust him. I’m sure the Roberts decision on ObamaCare was seen by him as Solomonic. It wasn’t, and as his decision is analyzed and as sources in the Supreme Court expose the deliberations, Roberts will be seen as a man who put self before principle by his previous allies. The Left will take what he can give them but always view him with ambivalence.
The composition of the Court also makes it impossible for Roberts to recover his previous position as a moderate Constitutionalist. There are four Liberal votes on the Court who vote as a bloc on important issues that divide Conservatives and Liberals. Roberts can guarantee a Liberal majority in these cases, but can’t reliably deliver a Conservative one. By crossing enemy lines, he may have no choice but to join their side wholeheartedly if he wishes to leave any legacy except that of a failed traitor.
We may, unfortunately, have to live with that.
Ann Coulter warned us about Roberts in 2005.
"After pretending to consider various women and minorities for the Supreme Court these past few weeks, President Bush decided to disappoint all the groups he had just ginned up and nominate a white male.
So all we know about him for sure is that he can't dance and he probably doesn't know who Jay-Z is. Other than that, he is a blank slate. Tabula rasa. Big zippo. Nada. Oh, yeah ... We also know he's argued cases before the Supreme Court. Big deal; so has Larry Flynt's attorney.
But unfortunately, other than that that, we don't know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever.
Since the announcement, court-watchers have been like the old Kremlinologists from Soviet days looking for clues as to what kind of justice Roberts will be. Will he let us vote?
Does he live in a small, rough-hewn cabin in the woods of New Hampshire and avoid "womenfolk"?
Does he trust democracy? Or will he make all the important decisions for us and call them "constitutional rights"?
It means absolutely nothing that NARAL and Planned Parenthood attack him: They also attacked Sandra Day O'Connor, Anthony Kennedy and David Hackett Souter."
Coulter stressed the historical problem with whisking through these "blank slate" type "stealth" nominees. It appears in Roberts case, according to Coulter, that he was more career driven and wanted to be on the high court more than anything else. One of the ways he accomplished this, writes Coulter, was by keeping his personal opinions to himself throughout his career up until his confirmation.
Other that that, I'd hope that you die in a fire.
Now, now. Wishing for harm to fall upon fools is never a righteous thing. Wish, rather, for the scales to fall from her foolish eyes.
Oooh, creepy thinking about death having a "taste".
Since taste and smell are so closely intertwined, and everyone knows "the stink of death", I'd rather think that death tastes like putrescine.
what the fuck is wrong with Posner?
He's a free market economist who believes in Roe v. Wade. Not just Roe v. Wade but killing babies outside the womb, as in his Carhart opinion.
His abortions opinions doom him on the right. This upsets him and angers him.
Of course it's not just abortion. Posner is an atextualist who thinks words (and law) can and should be deconstructed until they mean whatever the judge wants them to mean. He likes power in the hands of an unelected elite ruling over us. That's the suspicion of too many Republicans. So while we cheer Easterbrook and Kozinski, we have nothing nice to say about the smart guy from Chicago.
If Posner wants to get to the Supreme Court--and he does--it's not going to happen as a Republican nominee.
Mitt Romney was a liberal Republican governor in Massachusetts. And who does he want to put on the Supreme Court? Judges like Roberts, Scalia, Thomas and Alito.
It's hopeless for Posner, and he knows it. So he sees no harm to going on NPR and saying how awful Republicans are.
"Look at me! I've evolved!"
We'd get more concise opinions as well as more entertaining ones.
In many ways Posner would be a better jurist than Kennedy. They're both lawless, but Posner is smarter and more imaginative.
On the other hand, Posner thinks there is an unenumerated right to induce labor and kill a baby outside the womb.
At least Kennedy was appalled by the homicides that resulted from his opinion in Casey. Kennedy strikes me as a very emotional jurist.
Posner is more ice cold sociopath in the Breyer mold.
Leslyn, it ceased being a judicial decision and became a political one when Roberts ignored the plain language of the law and how it was passed as a penalty and substituted his own language calling it a tax. End of sentence.
As for the rest of you on both sides of the aisle:
Roberts' decision was simply the 2012 version of the Hughes court's 1936 "stitch in time that saved nine", with Heller, McDonald, and especially Citizens United substituting with the New Deal cases FDR pitched a tantrum over. Same attacks on the "legitimacy" of the Court, even a proposal by some liberal "legal scholars" to increase the size of the Court.
Neither Roberts nor Hughes ever read "Danegeld"; if they had, they would have realized that giving barbarians or liberals what they want is simply asking for more attacks.
Roberts' decision was simply the 2012 version of the Hughes court's 1936 "switch in time that saved nine"
I just realized that the Supreme Court Justice who switched his vote in 1937 was also named Roberts! What an odd coincidence.
The case in which Roberts switched sides was West Coast v. Parrish.
He was right to switch. That case would be 9-0 today. The states have general police powers. And there is no basis in the Constitution for striking down a state minimum wage law.
So why did the Supreme Court fight minimum wage for so long? Because minimum wage laws are stupid. Our minimum wage today marginally adds to unemployment and inflation. If our miminum wage laws actually had teeth ("Every worker shall be paid $100 an hour at a minimum!"), it would be an utter disaster. Which is why smart liberals never do that with the minimum wage. They merely want to use it for propaganda purposes.
Supreme Court Justices are not supposed to strike down bad laws or stupid laws. They are supposed to strike down unconstitutional laws. That's why West Coast v. Parrish would be 9-0 today. The liberals were right. Not politically, but jurisprudentially.
And consider that by fighting for the invisible and dishonest "right to contract," the conservative Supreme Court Justices put their entire jurisprudence into disrepute. And when the liberals got power--and power always switches to the other side, like the tides coming in--they washed away everything, even the good stuff. Like, for instance, the non-delegation doctrine.
You have to ground your jurisprudence with a healthy respect for democracy and the other side. If you can do that, your cases might hold up when the other side gets power.
This is why liberals are in a continual panic over Roe v. Wade. It is always on the edge of the cliff, and one day it will fall right off it.
This Althouse post from a few years ago might be worth re-reading. The Left has lost many potential allies by trying to insult them back into the fold. Let's not imitate them.
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