Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktThe WSJ today notes something odd that I noticed and thought was peculiar yesterday in reading through the dissent:
One telling note is that the dissent refers repeatedly to “Justice Ginsburg’s dissent” and “the dissent” on the mandate, but of course they should be referring to Ruth Bader Ginsburg’s concurrence. This wording and other sources suggest that there was originally a 5-4 majority striking down at least part of ObamaCare, but then the Chief Justice changed his mind.
The Justices may never confirm this informed speculation. But if it is true, this is far more damaging to the Court’s institutional integrity that the Chief Justice is known to revere than any ruling against ObamaCare. The political class and legal left conducted an extraordinary campaign to define such a decision as partisan and illegitimate. If the Chief Justice capitulated to this pressure, it shows the Court can be intimidated and swayed from its constitutional duties. If this was a play to compete with John Marshall’s legacy, the result is closer to William Brennan’s.
Charles Krauthammer proposes a similarly political explanation for Roberts’ decision.
Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the Court’s legitimacy, reputation, and stature…
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Whether or not this is true, Roberts’ decision will not, and should not, restore any lost legitimacy of the court. The legitimacy of the court (to the extent that it even matters) had not been brought into question because one or two contentious decisions have been perceived as politically motivated. The legitimacy of the court is in question because the court has become a political institution. In our post-Roosevelt and, in particular, post-Roe world, justices are appointed and confirmed to the court by politicians in a blatantly transparent effort to effect political ends via the judiciary. And once on the court, those justices do what they were nominated to do. From a layman’s perspective, it has become obvious that, on many politically contentious issues that make it to the court, justices have a preferred result in mind and use whatever lawyerly semantics, sophistry and tortured reasoning they can to justify reaching that preferred outcome.
Far from dispelling this impression of the court, Roberts’ opinion merely strengthens it. The fact that he is a conservative joining a bloc of liberals does nothing to blunt the undeniable conclusion that this decision was politically motivated. It doesn’t matter much whether it is because he likes the direction in which Obamacare is taking the nation, or because he is trying to – ironically – alter perceptions of the court. It is clear that he has engaged in the same semantics, sophistry and disingenuous parsing that has made so many of us non-lawyers so cynical about the court’s proceedings.
If Krauthammer is correct and Roberts’ decision was driven by a desire to burnish the courts flagging reputation as an impartial, non-political interpreter of the law, he could not possibly have taken a more counter intuitive approach, nor have failed more abysmally.
Filed under: Supreme Court |
All Things in Moderation 
Or perhaps Roberts thought that the individual mandate was within the power of Congress. His oral questioning was directed specifically at the grounds he eventually used. Crazy thought, I know.
The WSJ’s theory does not account for the possibility that the decision was written at least in part before the final vote was made and that it was arrogantly presumptive of the author to assume he/they was/were in the majority.
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yello:
Or perhaps Roberts thought that the individual mandate was within the power of Congress.
Possible, although I assume that Roberts is too intelligent and too experienced a lawyer not to grasp the difference between a tax and a penalty, nor to grasp the difference between what congress could have done and what it actually did do.
The WSJ’s theory does not account for the possibility that the decision was written at least in part before the final vote was made and that it was arrogantly presumptive of the author to assume he/they was/were in the majority.
I’m not entirely familiar with the behind the scenes process at the court, but I thought that throughout the process, the justices were kept fairly well informed of where they stood relative to the other justices.
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I still have to read the whole tome (it’s sitting right next to me). I have heard a number of people raise the “dissent” speculation, including John Eastman, who is a brilliant guy. I don’t think the references are enough evidence of a vote flip. First, I don’t think the joint dissent would have been that sloppily edited. Second, they are referring to the Ginsburg dissent on the Commerce Clause, and on that point they are right: it is a dissenting opinion of only four Justices. Third, I suspect that they wanted to drill home the fact that the Ginsburg opinion is indeed a dissent. Fourth, if Roberts initially voted with the four, he probably would have been the one initially drafting (or his clerks at least).
I have to think a lot more about Roberts’s role. But I have always said, he is, from the surprisingly little we actually know about him, more of the school of “restraint” as defined by deferring to the exercise of federal power than as originalism or textual and historical fidelity. He believes a lot in deference to Congress and precedent. These are not, in my view, the appropriate measures of how the Court avoids “judicial activism,” but they unfortunately came to be seen that way by many. His reasoning in this case is, however, beyond strained and implausible, so it is a challenge to find the “innocent” explanation.
The WSJ’s theory does not account for the possibility that the decision was written at least in part before the final vote was made and that it was arrogantly presumptive of the author to assume he/they was/were in the majority.
So if there was a preliminary vote to strike it down, and someone started drafting the opinion that way, it was arrogantly presumptive [sic]? Give me a break.
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Orin Kerr echoes a lot of what QB writes about Roberts’ potential vote flip.
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Yeah me!
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Thanks for this Scott. I read about some of the possibilities last night and found it very intriguing. I imagine it will all be speculation for some time. Haaahaaa, I was hesitant to do a post about it as I was afraid everyone would think I was some kind of conspiracy nut, especially since ostensibly, Roberts ruled the way I preferred. I do love intrigue though.
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The on the Medicaid expansion has a potential to be a huge problem. that’s my task for the day: if states don’t expand, the law makes no provision (i’m looking to confirm) for them to qualify for subsidies and or tax credits. that expansion population — basically the bulk of the uninsured this thing was designed to address, could remain uninsured.
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Thanks for that article, Mike. From within it:
So if there was a preliminary vote to strike it down, and someone started drafting the opinion that way, it was arrogantly presumptive [sic]? Give me a break.
Absolutely. It was probably presumptuous as well.
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Sounds like an excellent topic for the next Bob Woodward book.
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What Robert’s did, it seems to me, is trade the idea that the Commerce Clause can regulate inactivity and switch it to the taxing power, as in, Congress can tax inactivity. It seems to me a distinction without a difference however. Now instead of arguing about the infinite elasticity of the Commerce Clause, we’re arguing over the infinite elasticity of Congress’s taxing power.
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David Brooks had an interesting take today:
“Modesty and Audacity
By DAVID BROOKS
Published: June 28, 2012
Washington is full of arrogant people who grab power whenever they get the chance. But there is at least one modest minimalist in town, and that’s John Roberts Jr.
In his remarkable health care opinion Thursday, the chief justice of the Supreme Court restrained the power of his own institution. He decided not to use judicial power to overrule the democratic process. He decided not to provoke a potential institutional crisis. Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts’s decision still represents a moment of, if I can say so, Burkean minimalism and self-control. ”
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My response to Brooks, the upholding of Obamacare by the Court has created, not avoided a Constitutional crisis.
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the chief justice of the Supreme Court restrained the power of his own institution
How is finding a tax where the law says there is none restraining the power of his own institution? That’s more of finding magical things in the penumbras. It may be politically savvy or something, but I’m not sure it’s restraining the power of his own institution.
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Ross Douthat channels Scott C.:
So does James Taranto:
And finally, from the dissent/concurrence of that great legal mind of the left, Ruth Bader Ginsburg, joined of course by rest of the best minds the left can find to put on the court:
Hmmmm. His reading of the constitution is both “retrograde” and “harks back” to a previous era while at the same is…”novel”? Even in their vitriol the Court’s left proves incapable of grasping the meaning of simple words.
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Even in their vitriol the Court’s left proves incapable of grasping the meaning of simple words.
Ginsburg jumped the shark in this case. She has completely lost touch with reality.
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I’d say it maintained the post Wickard v Filburn status quo.
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J,
Disagree, there are now no limits on government power.
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Interesting look at the impact that the Medicaid expansion ruling will have.
http://americanactionforum.org/topic/american-action-forum-analysis-finds-supreme-court’s-ruling-medicaid-will-add-hundreds-billion
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“Everybody between 100 percent and 133 percent would be eligible for insurance subsidies – with the federal government (read: taxpayer) picking up the entire tab.”
that might not be accurate. see my post on “what’s next”
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“Troll McWingnut or George, whichever, on June 29, 2012 at 11:33 am said: Edit Comment
J,
Disagree, there are now no limits on government power.”
There weren’t any after Wickard either. Now it’s just more obvious.
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FYI,
Clues you may not be a legal scholar:
The Real Winners
By PAUL KRUGMAN
Published: June 28, 2012
…
“But, for now, let’s celebrate. This was a big day, a victory for due process, decency and the American people. ”
“Due process” had nothing to do with this case.
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Not the biggest fan of Linda Greenhouse at the NYT, but this is an apt summation:
“He made a vigorous argument that Congress had overreached, while at the same time calling on the taxing power as a deus ex machina by which to avoid the logical consequences of his own constitutional analysis.”
http://opinionator.blogs.nytimes.com/2012/06/28/a-justice-in-chief/?ref=opinion
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I’m thinking it’s worse, before Steven’s activism, the Federal Government could merely regulate literally everything, now, on top of that, literally everything, or the lack there of, can be taxed. I see no reason why Congress cannot tax, for example, citizens that do not publicly state that “they welcome more Federal Taxation.”
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it’s a tax and not a tax.
WAR IS PEACE, FREEDOM IS SLAVERY, and IGNORANCE IS STRENGTH
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I still don’t believe that this is a Constitutional crisis. To quote someone on the PL, your side got Bush v Gore and Citizens United–we got this one.
The USA will survive. . .
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Mich:
I still don’t believe that this is a Constitutional crisis
I agree. How can we have a constitutional crisis when we barely even have a constitution anymore?
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scott
Even in their vitriol the Court’s left proves incapable of grasping the meaning of simple words.
I imagine they’re smart enough to know exactly what the words mean and meant to say them. Scalia doesn’t exactly hold back does he? It does seem as though the court is becoming more political but we hear that so much I think we’re all becoming immune to it.
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lms:
I imagine they’re smart enough to know exactly what the words mean and meant to say them.
That’s even more disturbing, if she actually intended to be self-contradictory.
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Scott: oh, pleeze.
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that great legal mind of the left, Ruth Bader Ginsburg, joined of course by rest of the best minds the left can find to put on the court
If we are going to get all sarcastic about great minds on the bench, we really need to invoke the brilliance that is Clarence “What Nino Said” Thomas. And just thank the heavens we dodged the Harriet Miers bullet.
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yello:
we really need to invoke the brilliance that is Clarence “What Nino Said” Thomas
Feel free.
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If we are going to get all sarcastic about great minds on the bench, we really need to invoke the brilliance that is Clarence “What Nino Said” Thomas.
That’s a really ignorant statement.
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Not being a legal scholar I read her comment as it being a novel idea to go back to a time when the SC second guessed Congress thereby skipping precedent. That’s just me though.
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Her use of “novel” as an epithet alone was dishonest, given that neither she nor anyone else was ever able to identify a single precedent for her Commerce position.
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lms:
I read her comment as it being a novel idea to go back to a time….
She explicitly referred to a “novel constraint”, not a novel idea to go back to a time when the SC second guessed congress, which wouldn’t be novel in any event.
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I was impressed with Justice Ginsberg’s faith in a command economy.
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qb:
That’s a really ignorant statement.
Wow. And I wonder why I find it difficult to muster the energy and desire to come and try to comment here these days.
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Wow.
Rather than recognize that both branches of the Supreme Court have justices of varying ability, it is easier just to refute the statement with a caustic insult.
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yello:
Rather than recognize that both branches of the Supreme Court have justices of varying ability…
Your entirely unsubstantiated insinuation about Thomas is no reason to “recognize” anything. It’s just the typical liberal slander against him.
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This is supposed to be a place where personal insults of other commenters are kept out of the conversation. No problem, I don’t think, criticizing politicians, supreme court justices, blogs, other commenters from other sites etc., but the people commenting here are off limits as far as those insults are concerned. We’ve all done it occasionally, and I understand the temptation sometimes, but I hope we won’t do it. We lose people when we do.
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Your entirely unsubstantiated insinuation about Thomas is no reason to “recognize” anything.
Clarence Thomas is rather reliably a second vote for Alito. About the only time the two disagree is when Alito has not been reactionary enough. Thomas’s sphinx-like demeanor during oral arguments would be merely idiosyncratic if it didn’t feed into the pre-existing impression that he is a judicial lightweight. The collected written opinions of Justice Thomas would also be a fairly unimpressive tome to future historians. Those are my opinions and I feel as entitled to express them as you are to ridicule Ginsburg.
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yello:
Clarence Thomas is rather reliably a second vote for Alito. About the only time the two disagree is when Alito has not been reactionary enough.
I presume you meant Scalia, not Alito. (I will refrain from the obvious opportunity for snark here.)
What evidence do you have of this?
Thomas’s sphinx-like demeanor during oral arguments would be merely idiosyncratic if it didn’t feed into the pre-existing impression that he is a judicial lightweight.
You are using your presumption about his gravitas to draw conclusions about his demeanor. Which means his demeanor cannot sensibly be used to draw conclusions about his gravitas. The fact that you need to engage in this circular logic suggests that you really have no substantive reason for your insinuations about him.
The collected written opinions of Justice Thomas would also be a fairly unimpressive tome to future historians.
Is this a personal judgment or are you just regurgitating something you read some where? Seriously, how many opinions has Thomas written on the bench, and how many of them have you read?
Those are my opinions and I feel as entitled to express them as you are to ridicule Ginsburg.
You are certainly entitled to express any opinion you want. But when I ridiculed Ginsburg, I provided a substantive reason for the ridicule. She wrote something that was obviously self-contradictory, a judgement that, given your resort to attacking Thomas rather than challenging my analysis of Ginsberg’s foolishness, I presume you share. Your judgment of Thomas would be much easier to take seriously if it was accompanied by a substantive reason. As it stands, like I said, it is nothing more than the knee-jerk liberal slander against a justice whose opinions they don’t like.
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BTW, I forgot to mention last night that the approval rating of the court has fallen from 50% in 2000 to 44% on June 7th of this year, slightly below President Obama. It will be interesting I suppose to see if this moves the needle. Also, only 31% of the population wants the entire ACA thrown out, so I wonder how that’s going to work out for Romney as he appears to be taking a very hard line against it.
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Clarence Thomas is rather reliably a second vote for Alito. About the only time the two disagree is when Alito has not been reactionary enough. Those are my opinions and I feel as entitled to express them as you are to ridicule Ginsburg.
So now Thomas is Alito’s pawn, while yesterday he was Scalia’s.
Thomas’s sphinx-like demeanor during oral arguments would be merely idiosyncratic if it didn’t feed into the pre-existing impression that he is a judicial lightweight. The collected written opinions of Justice Thomas would also be a fairly unimpressive tome to future historians.
I am pretty confident that you haven’t read enough Supreme Court opinions or Thomas or anyone else to pass that sort of judgment, leaving aside whether you have any other qualifications to do so. The fact is that Thomas has been one of the more independent thinkers on the Court in recent decades, and his opinions are quite well written and reasoned, your prejudice and distaste notwithstanding.
Those are my opinions and I feel as entitled to express them as you are to ridicule Ginsburg.
It’s America, and anyone can say whatever foolish things he wants. But your opinion would have more credibility if you were able to back it up with some persuasive analyses and critiques of Thomas’s opinions. I doubt that will be forthcoming.
Wow. And I wonder why I find it difficult to muster the energy and desire to come and try to comment here these days.
I made a perfectly factual statement. Anyone who knows some basic objective facts about how the various Justices vote knows that yello’s assertion was ignorant. That it is a long-standing, bigoted talking point of people on the left doesn’t make it less ignorant. If anyone thinks, to the contrary, it can be factually supported, feel free to make the case.
This is supposed to be a place where personal insults of other commenters are kept out of the conversation. No problem, I don’t think, criticizing politicians, supreme court justices, blogs, other commenters from other sites etc., but the people commenting here are off limits as far as those insults are concerned. We’ve all done it occasionally, and I understand the temptation sometimes, but I hope we won’t do it. We lose people when we do.
I said his statement was ignorant. That isn’t an insult. It’s a factual statement about his statement.
The other day you told me I don’t know about being a parent, or some such put down. Yello has called me a racist. Those are insults. But you gals only get huffy when someone on the right “gets out of line.”
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Yello has called me a racist.
I have never called you a racist, a homophobe or a bigot, here or anywhere else.
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But you gals only get huffy when someone on the right “gets out of line.”
Wow.
I don’t know what’s gotten in to you, qb, but this takes the cake.
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qb, first of all, I didn’t say you didn’t know anything about being a parent, you misunderstood my comment. Aren’t you the one always saying you don’t understand what I’m saying? Anyway, take my comment above however you want, I’ll just let it stand for now and move on.
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Well, yello, either you’ve forgotten or are fibbing, because you explicitly did. I don’t really care. I just weary of double standards.
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You know what, qb? You’re right. We gals just need to learn our place in the world, understand that our hormones make us too silly to have valid opinions, and that men are always, always right (unless, of course, they’re liberal, and then they aren’t right either)(they might be gay, too!!!).
This blog has turned into a place where my point of view is either explicitly or implicitly held in contempt. Thanks, all.
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You know what, qb? You’re right. We gals just need to learn our place in the world, understand that our hormones make us too silly to have valid opinions, and that men are always, always right (unless, of course, they’re liberal, and then they aren’t right either)(they might be gay, too!!!).
This blog has turned into a place where my point of view is either explicitly or implicitly held in contempt. Thanks, all.
You know what, michi? None of that has any relation to anything I said. But we’ve been around that horn many times. Here, you and lms decided you needed to take shots at me for calling an ignorant statement ignorant. Your comments expressed no “point of view” on anything of substance but just a shot at me.
You didn’t mind the other day when FB took a word I used, did a whole post on it, and started commenting about my defective mental processes and intellectual sloth. You didn’t mind when yello said in his first SSM post that opposition is just thinly veiled homophobia. (We just shrugged that off.) But you minded a lot when I said his ignorant statement about Clarence Thomas was ignorant.
Since this is basically the only type of thing I ever hear from you, your are sort of right that at this point your point of view doesn’t mean a lot to me. Your point of view only seems to have to do with what is wrong with me. I can probably get enough nagging and personal criticism elsewhere.
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Btw this part:
This blog has turned into a place where my point of view is either explicitly or implicitly held in contempt. Thanks, all.
… is especially rich, coming in the context of a four-part pro-SSM series of posts that calls opposition to it homophobia.
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you and lms decided you needed to take shots at me
qb, I’m sorry you feel that way. It’s my belief that there’s a right way and a wrong way to criticize someone’s opinion and comments. Using words like ignorant, stupid, simple-minded etc. don’t really garner any accolades. I just think we can all do better than that and thought I made that clear. Regardless, it’s not my website so do what you want I guess.
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lms,
I understand your point of view, but there are times when an appropriately strong word is needed. I have heard the Clarence-Thomas-the-stupid-unqualified-Uncle-Tom-second-vote-for-Scalia talking point for years from people who truly have no idea what they are talking about and no qualifacations whatsoever to say it. It is offensive. I have refuted it substantively all the times I plan to. At this point, I am not going to waste more time debating it with people who have no idea.
I think you have a very one-sided sensitivity. Again, you didn’t have any complaints when FB started directly attacking my intellect. I just accept it as a reality at this point.
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lms:
Using words like ignorant, stupid, simple-minded etc. don’t really garner any accolades.
But they don’t seem to garner any criticism, either, when used by people on the left. That is qb’s point, or at least part of it.
It’s fairly obvious that you and Mich employ a double standard on this sort of thing. The most obvious evidence is the deafening silence from both of you back when bsimon called me an asshole. “Asshole” merits no response whatsoever, but “ignorant statement” gets an immediate rebuke from you and drains Mich’s will to even come here? Seriously? Now why do you suppose that is, if it isn’t a function of the politics of the people involved?
I don’t particularly care. Really, I don’t. Actually it is somewhat expected. People will give a lot more slack to those they agree with than those they don’t. But it doesn’t make a lot of sense to deny something that is so obvious.
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Again, you didn’t have any complaints when FB started directly attacking my intellect.
I didn’t know he did that and if he did, he shouldn’t have. I just think we can disagree, vehemently even, without doing that. Maybe I’m wrong. And I thought yello’s posts this week lead to some great discussions here considering that they were highly opinionated. It’s actually something we’ve been missing lately and I even commended you on a great comment even though I disagreed with it pretty close to 100%.
Also, just to clear the air, my comment about you not knowing what you were talking about was more along the lines of being a parent of a gay child and I probably should have worded it differently. I don’t know what that would be like either but in my imagination I assume most of them would want the same things you and I do for our children, and presumably that means a happy marriage. Most women don’t stick around here very long and I assume there’s a reason for that, and you guys, and I include everyone here, can blame the women or take a little responsibility for it yourselves. Sometimes a simple and straight forward half-assed apology works……………………….being a woman, I’ve had a few of those.
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Well then Scott, I guess I need to tell you that BSimon was wrong as well, I thought I recalled that he made one of those half-assed apologies I was just talking about. I also guess I need to know when to keep my mouth shut, thanks for the reminder. You guys do what you want……………….really.
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” I also guess I need to know when to keep my mouth shut, thanks for the reminder. You guys do what you want……………….really.”
Is that your interpretation? That we think you should just be quiet? It seems to me, more of a request for evenhandedness. I think QB’s right though, we often are more willing to give the our side more slack. I also agree that yellow’s posts, in particular his first post where he explicitly calls those that disagree with SSM as homophobic, are obnoxious. But it is something that is so common, and frankly expected, that aside from perhaps QB and Scott’s initial criticism of it, I don’t think anybody else said anything. I found it disgusting and quite typical of yellow’s behavior and it killed, at least for me, any interest in discussing the issue with him. Who needs that here, to argue with somebody who believe’s you’re a bigot because you disagree with them?
And just for giggle’s, here’s another of bsimon’s gems directed at Scott:
” I have learned that conversing with you is an exercise in futility & returns nothing for the investments of time and thought. If I reply to your comments, please presume the thoughts are meant for the group and that I am not soliciting a reply from you. Thanks in advance.”
That there is a double standard here, really, is something I agree with. Exactly what it is though is where we probably disagree.
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a four-part pro-SSM series of posts that calls opposition to it homophobia.
The word homophobia is nowhere to be seen in any of these posts. These are my reactions to common arguments against SSM. I have been respectful and engaging to the opposition comments throughout. I intended for them to foster dialog and they definitely seem to have done that judging by the number of comments on each thread and at least one ancillary independent side post. I kinda thought the point of this blog was to have different perspectives represented respectively.
Clarence-Thomas-the-stupid-unqualified-Uncle-Tom-second-vote-for-Scalia
Thomas’s race is immaterial to this conversation and I was not the one who brought it up.
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The word homophobia is nowhere to be seen in any of these posts.
From your first post:
“Frankly , most revulsion towards gay marriage is simply thinly veiled homophobia over the fact that gay sex is icky. That is why lesbian couples such as Mary Cheney and Heather Poe, as well as my cousin, are much more palatable to the public than the male variety. But that is why straight men watch ‘lesbian’ porn and women write slash fiction.”
Thomas’s race is immaterial to this conversation and I was not the one who brought it up.
It should perhaps be immaterial, but it isn’t. The meme you are repeating was originated 20 years ago by opponents of Thomas’s nomination who portrayed him as an unqualified, stupid, token black, and if I, for example, were to claim that Thurgood Marshall was an unaccomplished Justice who was just William Brennan’s second vote, well, we all know where that would lead. You once did a post claiming that ridicule of Obama for teleprompter overuse is ipso facto racist, as I recall. The “second vote for Scalia” meme has origins directly tied to race.
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qb:
From your first post:
Well, that’s rather embarrassing.
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Scott,
Well, that’s rather embarrassing.
I remarked on the word, but I guess we could have had a throw-down over it. I agree, the posts dripped with contempt, but we tried to discuss them reasonably.
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yello:
I kinda thought the point of this blog was to have different perspectives represented respectively.
The idea that you have represented opposition to SSM respectfully is, er, an interesting one. Your posts drip with contempt for SSM opponents, and you have misrepresented them.
But you did prompt some more reasonable discussions amongst others of us, so you should get credit for that.
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McWing
Who needs that here, to argue with somebody who believe’s you’re a bigot because you disagree with them?
That seems like a real leap of faith to me. And I’m sorry you didn’t participate, we had a good discussion. My problem with the name calling type insults from either side frankly is that I don’t want this place to turn into another PL. The back and forth insults lowers the standard for everyone and everyone eventually participates in it. Like I said, it’s just my opinion of what atim should strive for, apparently we’re not there yet. I hate when people leave, like BSimon for instance and the girls. But I can’t seem to figure out a way to discuss the issue without being the subject instead of just someone who wants to improve the place. That’s why I said I’ll just be quiet about it. I don’t think anyone really cares that much. Let the chips fall where they may so to speak.
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This comment will probably get lost among the recriminations but SCOTUSblog has a cool stats package about SCOTUS decisions.
This past Term, the two Justices that agreed the most are, unsurprisingly, Scalia and Thomas (93%) followed by Roberts and Alito (91%). Ginsburg and Scalia/Thomas was the lowest at 56%. Interestingly, the Ninth Circuit didn’t get bitch-slapped as much as usual this Term, only overturned 71% of the time. At some point, I’ll go see how many of those opinions from the Ninth were authored by Reinhardt, who is probably the most reversed judge out there.
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Mike:
SCOTUSblog has a cool stats package about SCOTUS decisions.
Yeah, I saw that earlier. I had been looking for a lifetime analysis of the same thing, but could only find the annual one. For some contrast, look at this one, with slightly more granularity, from I think it was 2005.
Scalia and Thomas were at 68% full agreement and 88% at least partial agreement. At that point they were not even close to the highest in terms of full agreement. That went to Rhenquist and, surprisingly, everyone’s favorite swing vote, Kennedy at 77%. (Partial was 83%). Rhenquist and Thomas were at 91% partial, although only 67% full agreement.
Some other pairings:
Ginsburg/Souter – 71%/88% (Perhaps this qualifies Ginsburg for parrot status as well. Or maybe Souter was parroting her?)
Ginsburg/Stevens – 70%/84%
Ginsburg/Breyer – 69%/86%
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“Frankly , most revulsion towards gay marriage is simply thinly veiled homophobia over the fact that gay sex is icky.”
I stand by that statement. It is not directed any specific individual.
When pressed far enough (and sometimes not very far at all, e.g. Westboro Baptist Church and its explicit ‘God Hates Fags’ campaign) the objections to same sex marriage often come down to religious grounds based on scriptural proscriptions or other variations about gay sex being unnatural, i.e. non-procreative. My posts were to discuss arguments that did not rely on strictly dogmatic objections.
I also feel that many people who oppose civil rights on libertarian grounds are high-jacking rhetoric for which I feel some sympathy for but to advance racist or crypto-racist agendas. Again, I do not accuse any ATiMers of that behavior. I just note that it exists.
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I stand by that statement. It is not directed any specific individual.
So you stand by a word you never used. Homophobia is literally a nonsense word used to mean nothing nut “you are a bad person” and to avoid reasoned discussion.
At whom is it directed, then? Everyone who opposes SSM?
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you have misrepresented them.
That is why I included at least one actual quote from a prominent public figure for each post so that I could not be accused of creating strawmen.
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yello:
That is why I included at least one actual quote from a prominent public figure for each post so that I could not be accused of creating strawmen.
But, as we amply demonstrated, that is exactly what you were doing.
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Scott
The idea that you have represented opposition to SSM respectfully is, er, an interesting one.
Except that’s not what he said. Yello used the word respectively not respectfully. I doubt he has much respect for some of the opinions represented by his links or quotes. I’m not sure I do either. Although I did tell qb I respected the work he put into his lengthy comment and believed it was well thought out or something along those lines. I meant it too. I think you can respect some people you disagree with but others not so much. I also believe you can have little or no respect for people you agree with because of the way in which they make their point.
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yello:
Except that’s not what he said.
You are right. I misread it.
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This past Term, the two Justices that agreed the most are, unsurprisingly, Scalia and Thomas (93%) followed by Roberts and Alito (91%).
Alito/Thomas is not far behind at 88%. The closest among the liberal wing is Kagan with either Breyer or Ginsburg at 85%.
I did mention that Thomas does differ with Alito when Alito votes with a more liberal majority. I offer that completely unsubstantiated. Feel free to refute it.
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yello:
I did mention that Thomas does differ with Alito when Alito votes with a more liberal majority.
Yes, but you mentioned it while insinuating that he is not an independent thinker, which is a bizarre conclusion to draw.
BTW, can please clarify whether you think Thomas is following the lead of Alito or of Scalia? Yesterday it was “Nino” but today it is Alito. Which is it?
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You are going to have to do a lot better than that, yello, and, no, I am not wasting my time refuting your ridiculous (apologies to lms) claim. Your knowledge on the subject fills a thimble, maybe.
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Homophobia is literally a nonsense word used to mean nothing nut “you are a bad person” and to avoid reasoned discussion.
That’s not the way I would use the word, but you are free to feel it means that. To me homophobia means, among many things, that a person is not entitled to equal treatment under the law based strictly on their sexual orientation.
At whom is it directed, then? Everyone who opposes SSM?
I prefer to let people express their own motivations than for me to characterize them for them.
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That’s not the way I would use the word, but you are free to feel it means that. To me homophobia means, among many things, that a person is not entitled to equal treatment under the law based strictly on their sexual orientation
But you originally said:
Frankly , most revulsion towards gay marriage is simply thinly veiled homophobia over the fact that gay sex is icky.
So, together that means that most revulsion towards gay marriage is simply thinly veiled … opposition to equal treatment … which means opposition to SSM … which apparently means revulsion towards gay marriage is thinly veiled opposition to gay marriage.
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that is exactly what you were doing.
Then I must have been quoting Rick Santorum out of context since he has so frequently defended those remarks.
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Yesterday it was “Nino” but today it is Alito. Which is it?
Based on those stats, that is a distinction without a difference. The bloc of three makes for quote a faction. Suffice it to say that Thomas is Reliably Conservative.
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Scott:
If you go to that SCOTUSblog link, you can look at each Term in even greater depth if you look at the “final stat pack”. Very inside baseball though. More interesting to me is the agreement between Justices in non-unanimous cases, since unanimous decisions occur about 40% of the time.
I don’t think either of us will bother compiling all the data into one graph though. Perhaps the Google can help.
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Some more interesting stats on scotus voting relationships, compiled last year for the October 2010 term. Interesting particularly in light of yello’s slam on Thomas as simply a follower of either Scalia or Alito (or both…yello can’t really bring himself to be clear about what he was talking about.) So the numbers represent percentage of rulings in which the two named justices were in full agreement/partial agreement.
Thomas/Roberts: 70/89
Thomas/Scalia: 65/86
Thomas/Kennedy 66/86
Thomas/Alito: 61/89
Notice how Thomas joined Scalia and Alito in full even less than he did either Roberts or Kennedy. Now lets compare these to some of the liberal pairings:
Sotomayor/Kagan: 82/94
Sotomayor/Breyer: 74/87
Sotomayor/Ginsburg: 71/85
Ginsburg/Breyer: 75/85
Ginsburg/Kagan: 85/91
Breyer/Kagan: 77/87
Notably, Thomas’ highest pairing for full agreement, with Roberts at 70%, was lower than every single pairing of liberal justices.. His highest pairing for partial agreement, at 89% with both Roberts and Alito, was lower than both Sotomayor/Kagan and Ginsburg/Kagan, the former a full 5% higher than Thomas’ highest.
I don’t know quite what these stats tell us, but they certainly don’t support yello’s caricature of Thomas as notably sycophantic towards Scalia/Alito/Scalito.
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BTW, yello, I remain very curious about your judgment of Thomas’ collected written opinions. I’ve asked you how many of his opinions you have actually read, but alas you chose not to answer. So instead why don’t you let me know which of his opinions is the worst reasoned/articulated, and which is the the least bad. Thanks in advance.
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yello:
I did mention that Thomas does differ with Alito when Alito votes with a more liberal majority. I offer that completely unsubstantiated.
Off the top of my head, I can think of a couple of cases where this was not true — Snyder v. Phelps, where Alito was the sole dissenter in the free speech case against Westboro Baptist Church protesting military funerals, and Bullcoming v. NM, a Confrontation Clause case involving a DNA testing where Thomas (and Scalia) joined Ginsburg’s majority opinion.
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qb
refuting your ridiculous (apologies to lms) claim
Give it a rest qb, you should be able to see the difference. I tried to be as honest and straight forward as possible, and even diplomatic, but you won’t accept the fact that maybe you made a mistake. You can blame me, yello, michi, FB, BSimon or whomever you want, but ultimately you’re the one responsible for the words that come out of your mouth or across the computer screen. If you’re satisfied with yourself calling another poster here ignorant then I can’t really stop you can I? Yes, I know you called his comment ignorant, but that’s a distinction without a difference. We can raise the bar or not, it’s our choice, and yes I’m including myself in that.
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lms:
Yes, I know you called his comment ignorant, but that’s a distinction without a difference.
I respectfully dissent. I think there is a significant difference.
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scott, I recognize the distinction you make. But sometimes in context it IS the same.
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okie:
But sometimes in context it IS the same.
And in the context of a substance-less liberal slander of Thomas that’s been well-rehearsed by the left for 20 years, by someone who has subsequently shown almost know familiarity with Thomas’ actual work on the court, it is not the same. QB’s was not a gratuitous slam. It was a truth.
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You might be right scott if qb had said any of those things but he didn’t. I’m not going to apologize for saying something about it but I did say I was wrong about other things. I do a lot of apologizing so I must be wrong a lot. I was willing to drop it until he added the little dig at me…………………………that’s the way he rolls. Oh was that too mean?
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lms:
I’m not going to apologize for saying something about it
I don’t think anyone expects an apology from you for anything. I certainly don’t.
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Scott, we may have to just disagree about whether it was a gratuitious slam.
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I don’t think anyone expects an apology from you for anything.
Phew
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I’m just no longer interested enough to put up with the neverending attacks on QB’s mean words and people flinging themselves about and saying “Woe is me, QB is so mean and disrespects women, I’ll just have to leave.”
No, the bar apparently can’t be and won’t be raised. I don’t even know what that means at this point. We have yello making a series of posts that are, as Scott said, dripping with contempt for conservatives, virtually sneering with words that he apparently doesn’t even know he’s using. He says in the first post that opposition to SSM is thinly veiled homophobia. We sort of shrugged that off and tried to engage in a lengthy and reasoned debate. He later says he never used the word, I show otherwise, and he says, I stand by it. Oh, but he doesn’t mean anyone in particular is a homophobe. It’s just that all opposition to SSM is homophobia. Par for the course listening to that kind of garbage if you are a conservative.
FB decides, what the hell, why don’t I make post about how QB has no idea what he’s talking about; he only used one word that was unscientific, so why not just make up some other things he didn’t say. Yello pops out an anti-Clarence Thomas smear that’s been a talking point for years and is known to everyone who actually follows the Supreme Court to be absurd. He’s generally making provocative comments trying to get a rise out of someone. Now, I’ve substantively refuted that Thomas meme multiple times to yello and others. I don’t bother any more, because they aren’t interested in facts. It doesn’t deserve more than what I said.
But when I call the statement what it is, ignorant, well now that is going too far, and as usual the Plumgirls assume attack formation. It’s the same record that plays over and over. Michi tells me I have contempt for women or their views or some other such nonsense that has nothing to do with anything.
I really don’t need it. If people want to discuss, debate, and argue, I’m game. But I’ve had enough of the melodrama. And no I am not apologizing for a word and couldn’t care less if anyone else does. Accuse me of whatever you want, run for the door, whatever, I have other things to do.
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High drama and woeismeism.
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So instead why don’t you let me know which of his opinions is the worst reasoned/articulated, and which is the the least bad.
The great thing about Google is that you can always find people to agree with you.
Like this person:
Or from the New York Times:
And then there is this incident.
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yello:
The great thing about Google is that you can always find people to agree with you.
Or tell you what to think, as the case may be. And obviously is, in this case. I think we have effectively demonstrated that your “opinion” of Thomas is little more than a regurgitation of what other people have said and consists of no actual analysis on your part. You really don’t know anything at all about his legal abilities at all. There’s a word for this of course, but some people here get seem to get offended when it is used, so I will refrain for now.
BTW, one of your links doesn’t work.
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There’s a word for this of course, but some people here get seem to get offended when it is used, so I will refrain for now.
You get the last word Scott…………..congratulations.
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You really don’t know anything at all about his legal abilities at all.
You got me there. I studied every single on of his oral argument questions for the last six years and learned nothing about his legal abilities at all.
BTW, one of your links doesn’t work.
Fixed
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yello:
From the intro of your latest link which has apparently informed your opinion of Thomas:
Obviously we need to look no further to see where you are coming from. Shame on you, and not just for your dishonest protestation earlier that Thomas’ race had nothing to do with this.
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Obviously we need to look no further to see where you are coming from.
I find that language regrettable and reprehensible as well. I was more concerned with the example where Roberts rebuked Thomas for being too reactionary.
I’m certain there is a logical fallacy which states that the fact that while someone says something which is highly objectionable it does not necessary invalidate the opinion presented. But I am not skilled enough in rhetoric to know what it is. Perhaps you can correct my ignorance in this matter.
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yello:
I find that language regrettable and reprehensible as well.
Sure.
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John Yoo weighs in:
“Updated June 29, 2012, 7:32 p.m. ET
John Yoo: Chief Justice Roberts and His Apologists
Some conservatives see a silver lining in the ObamaCare ruling. But it’s exactly the big-government disaster it appears to be.”
http://online.wsj.com/article/SB10001424052702303561504577496520011395292.html?mod=WSJ_Opinion_LEADTop
He’s exactly right. There’s no silver lining. It’s a complete victory for liberals/progressives and an expansive reading of the power of the Federal government.
With regards to Justice Thomas, he’s the Justice who has the most clearly developed judicial philosophy and is the most consistent in applying it. His lack of questioning in oral argument is due to the fact that oral argument is a farce. It’s merely a public relations exercise to help maintain the idea that the justices are “impartial” and approach each case with an “open mind”. In reality, they have their own views of what is constitutional and what isn’t and can just as easily decide the cases on the basis of the written record. As case in point, by any measure the government “lost” in oral argument for the ACA case, yet it was upheld by Justice Roberts making the case himself that the government was unwilling (or unable) to articulate in oral argument with regards to the mandate being read as a tax.
Justice Thomas is more consistent than Scalia as evidenced by his dissent in Gonzales v. Raich
“Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”
http://www.law.cornell.edu/supct/html/03-1454.ZD1.html
Having read a fair amount of Thomas’ opinions it’s clear he’s not stupid by any means. He simply holds a view of constitutional interpretation that is anathema to liberals and progressives. Unlike Scalia, he’s willing to follow it even when it produces results that (presumably) he would disagree with from a policy standpoint.
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With regards to Justice Thomas, he’s the Justice who has the most clearly developed judicial philosophy and is the most consistent in applying it.
There is no disputing that he is consistent and principled.
He simply holds a view of constitutional interpretation that is anathema to liberals and progressives.
Tough to disagree with that as well.
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And if you are the type of person who dismisses all of John Yoo’s opinions out of hand merely because he was the architect of the justification for our enhanced interrogation program, there is Jeffrey Toobin with this laudatory opinion:
It is really a shame that Dubya ignored Thomas’s seniority and proven record only to appoint the newly minted Roberts Chief Justice instead. I would hate to insinuate dark motivations to our former president, but I wonder just why Thomas would get bypassed in such a way when he is clearly the superior conservative and judicial intellect. Perhaps it is better that he is just the power behind the curtain.
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“yellojkt, on July 1, 2012 at 5:24 am said:
It is really a shame that Dubya ignored Thomas’s seniority and proven record only to appoint the newly minted Roberts Chief Justice instead.”
Thomas would have had to been reconfirmed as Chief Justice. That never would have happened.
Also:
“And if you are the type of person who dismisses all of John Yoo’s opinions out of hand merely because he was the architect of the justification for our enhanced interrogation program,”
I’ll take John Yoo over Eric Holder’s “Due process isn’t necessarily a judicial process” any day of the week.
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Interesting speculation from CBS legal correspondent. Robert’s did switch his vote.
http://www.nationalreview.com/corner/304505/source-roberts-switched-sides-daniel-foster
Course, it is CBS, so TANG memo fraud has to be taken into consideration.
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jnc:
I’ll take John Yoo over Eric Holder’s “Due process isn’t necessarily a judicial process” any day of the week.
Can I express a preference for “none of the above”?
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Can I second what michi said? As far as I’m concerned, Yoo and Holder are interchangeable.
I don’t see what difference it makes whether Roberts switched his vote or not. Am I missing something?
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okie:
I don’t see what difference it makes whether Roberts switched his vote or not. Am I missing something?
If it is true, it suggests that applying political pressure on the Chief Justice is an effective means of achieving desired political results out of the court. This is good news for people (those on the left, for instance) whose political goals require that the Supremes ignore the restraints that the constitution places on the power of the federal government.
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Okie, Scott’s original topic was about the possible politicization of SCOTUS. This report, if true, and remember – it’s CBS so it’s a biiiiiiiiiig if- may feed into that if he switched votes not because he thought the Constitution supported it but for some BS reason about public perception and court stature.
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Thanks, troll. I’ve been bouncing through so many threads trying to catch up, I guess I forgot what thread it was. But it still does not make any difference to me, heh.
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Actually, George, Scott’s post is arguing (and I agree with him) that SCOTUS is already politicized. I, frankly, don’t much care if he switched his vote at the last minute or not, and I’ve heard/read lots of commentary both ways in the last few days; the Court has been politicized for a long time now, and one ruling in one case isn’t going to change anybody’s perception of that.
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I stand corrected on the point of the original topic. I’m still curious why Robert’s made such a disastrous decision. Which is worse, that he values Democratic public opinion of the Court over his own Constitutional beliefs? Or that he truly believes that inactivity is a legitimate target for taxation, that there is no limit to what the state can do to an individual via either it’s regulatory power or taxing power?
I asked before but no one answere, can the Federal government tax me for not stating publicly that “I welcome increased Federal involvement into every aspect of my life” ? It’s not inhibiting my right to free speech, I can say, or not say, anything I want.
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McWing:
I asked before but no one answere, can the Federal government tax me for not stating publicly that “I welcome increased Federal involvement into every aspect of my life” ?
It depends on whether liberals think it is in the best interests of the nation for you to do so. If it is, then yes it can. There is no longer any restraint on liberals desires to do what they think is “good”.
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I was more concerned with the example where Roberts rebuked Thomas for being too reactionary.
Don’t put so much stock in the rhetoric on that website. Whoever writes it is pretty much lost and without substance. I see a lot of denunciation there but not actual analysis. In any event, the notion that Roberts rebuked Thomas, as those fellows potrray it, is silly and reflects a lack of understanding of the Court.
Unlike Scalia, he’s willing to follow it even when it produces results that (presumably) he would disagree with from a policy standpoint.
This is roughly true, although it would be a mistake to read policy as politics here. Judges often use policy considerations to support their holdings, and Thomas notably is reluctant to do that.
The other major difference is that Thomas is less deferential to constitutional precedent. His view is, if it is wrong, correct it. Even Scalia is more willing to defer to possibly erroneous precedent. I happen to think that Thomas has the better of this argument.
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I believe the Tobin piece does a pretty convincing job of rebutting the view of Thomas as a lightweight:
“The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”
Thomas’s intellect and his influence have also been recognized by those who generally disagree with his views. According to Akhil Reed Amar, a professor at Yale Law School, Thomas’s career resembles that of Hugo Black, the former Alabama senator who served from 1937 to 1971 and is today universally regarded as a major figure in the Court’s history. “Both were Southerners who came to the Court young and with very little judicial experience,” Amar said. (Thomas is from Georgia.) “Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case.”
The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.”
http://www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin#ixzz1zMunLyjV
This pretty much exactly correlates with my view of Thomas.
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“Let me tell you how it will be
There’s one for you, nineteen for me
‘Cause I’m the taxman, yeah, I’m the taxman
Should five per cent appear too small
Be thankful I don’t take it all
‘Cause I’m the taxman, yeah I’m the taxman
If you drive a car, I’ll tax the street,
If you try to sit, I’ll tax your seat.
If you get too cold I’ll tax the heat,
If you take a walk, I’ll tax your feet.
Don’t ask me what I want it for
If you don’t want to pay some more
‘Cause I’m the taxman, yeah, I’m the taxman
Now my advice for those who die
Declare the pennies on your eyes
‘Cause I’m the taxman, yeah, I’m the taxman
And you’re working for no one but me.”
http://www.lyrics007.com/The%20Beatles%20Lyrics/Taxman%20Lyrics.html
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Question: If it is within congress’s constitutional authority to “mandate” that everyone in the nation must purchase insurance, and to impose a “tax” on anyone failing to do so, is it also within congress’s constitutional authority to “mandate” that every person seeking an abortion purchase an invasive ultrasound procedure, and to impose a “tax” on anyone failing to do so?
If not, why not?
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The Ginsburg wing would have no trouble holding that the tax on not having ultrasound impermissibly burdens the right to abortion.
They would even cite language from the Obamacare opinions that says a tax can be used to influence behavior.
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qb:
Now that I am thinking about it, isn’t the failure to produce children placing a burden on the rest of the nation? The future of the SS/medicare program, and indeed now even our new national health care system, depends upon the existence of future generations, young people paying for the older generation, and every person that does not contribute to the creation of that future generation is placing a greater burden on the rest of us. Congress needs a “mandate” on the production of children, for the General Welfare of the nation, of course, and should be imposing a “tax” on every person who does not do their part.
Given that this is now within congress’s power, I think it needs to get to work.
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“ScottC, on July 1, 2012 at 2:09 pm said:
McWing:
I asked before but no one answere, can the Federal government tax me for not stating publicly that “I welcome increased Federal involvement into every aspect of my life” ?
It depends on whether liberals think it is in the best interests of the nation for you to do so. If it is, then yes it can. There is no longer any restraint on liberals desires to do what they think is “good”.”
In aggregate, questioning the value of increased Federal involvement could affect interstate commerce by undermining public confidence in government. Therefore such views can be regulated by the Federal government under the Commerce Clause, and through the Necessary and Proper clause they can tax you to discourage such behavior.
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jnc:
In aggregate, questioning the value of increased Federal involvement could affect interstate commerce by undermining public confidence in government. Therefore such views can be regulated by the Federal government under the Commerce Clause, and through the Necessary and Proper clause they can tax you to discourage such behavior.
The possibilities are endless. Clearly the failure of vegetarians/vegans to purchase and consume meat products effects interstate commerce. Therefore congress is fully empowered to “mandate” that every living person in the nation purchase, say, a certain amount of beef products every week, and to “tax” anyone who fails to do so in order to discourage such (non) behavior.
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There’s no question that the holding gives Congress affirmative power to tax absolutely any and all conduct, whether act or failure to act, it wants, so any jokes anyone can think of aren’t really jokes at all. There is no longer a need for reductio examples. They can penalize you for not eating broccoli, sleeping too late in the morning, not exercising enough.
There also is no more need to resort to commerce power. It just doesn’t matter. All Congress has to do is say, everyone shall do X or pay a penalty of $Y. That’s no longer a joke either. That is the law. The Court will call it a tax and therefore within the taxing power.
The only restraint left is the Bill of Rights and whatever other so-called rights the Court makes up (abortion of course being the No. 1 Fundamental Human Right of ALL). Troll’s question is rather diabolically clever, but the Court would probably say that it still infringes the 1st Am to tax failure to speak, because compulsory speech can also violate the 1st.
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qb:
There’s no question that the holding gives Congress affirmative power to tax absolutely any and all conduct, whether act or failure to act, it wants, so any jokes anyone can think of aren’t really jokes at all.
Indeed. That is the what is depressing. What is even more depressing is that so many people not only don’t care, but actively support it. I become more cynical about my fellow citizens almost daily.
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Scott,
I’m afraid you just aren’t thinking fully like a constitutional and political liberal yet. If you are RB Ginsburg, you always win, you always get to have it both ways.
You give Congress poewr to do anything they want in terms of affirmative power, which is great when your ideological allies are in control, but then you stop anyone else from using that limitless power by enforcing and when necessary inventing new rights that the power can’t be used to invade.
We need not worry, the Court is in charge now. They will take care of us.
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Wow, Jan Crawford has a more detailed story out, and according to her account, it was just as bad as rumored: Roberts switched sides under political pressure. But the dissent was not drafted as a majority opinion, as some speculated. The dissenters just found Roberts’s opinion so bad they refused to join it.
If true, it is a disgrace and a dark legacy for Roberts.
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qb:
Wow, Jan Crawford has a more detailed story out, and according to her account, it was just as bad as rumored: Roberts switched sides under political pressure.
If this is true, I think the four conservative justices should have resorted to their own pressure on Roberts. They should have all threatened to resign if he flipped sides. He’s worried about the appearance of the court under his leadership? How does he suppose it would look for 4 of his colleagues to resign in protest over his acquiescence to political pressure?
In fact I think they should resign in protest now. At this point does it really matter if the entire court is comprised far left Obama liberals? It’s not like the constitution has any meaning anymore anyways.
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What’s even better , from a Congressional standpoint, they can call the tax anything the want! Heck, they can even call the mandate tax a tax cut. Makes increasing taxes to force behavior the government wants essentially electorally easy and cost less.
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McWing:
What’s even better , from a Congressional standpoint, they can call the tax anything the want! Heck, they can even call the mandate tax a tax cut.
Orwell would be proud.
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“but the Court would probably say that it still infringes the 1st Am to tax failure to speak, because compulsory speech can also violate the 1st.”
The thing is QB, according to the Robert’s court, I am not compelled to speak, I can either speak or pay a tax. I can either buy health insurance or pay a tax. In all honesty, there is no compulsion to do anything because I can avoid the compulsion by paying a tax, according to the Robert’s court.
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Troll,
I know what you are saying, but I don’t think they would allow it, and I think they would think they were being consistent. The Commerce portion of Roberts’s opinion unequivocally says that the mandate seeks to compel activity and can’t be upheld under the Commerce power as a result.
Then he just executes a flip-flop to say, it can still be upheld as a tax anyway. For example, he writes:
“None of this is to say that the payment is not intended to affect individual conduct. Although the payment willraise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry.”
That is in the part upholding it as a tax. Someone could perhaps argue that there is a difference between influencing and compelling behavior or speech, but there is already a significant line of cases that hold that taxation cannot be used to regulate otherwise protected speech rights. Now, I don’t know of a case that holds that a tax cannot be used to compel speech as opposed suppressing it, but I am confident that these same Justices would hold that it can’t be. This is part of the beauty of the decision for lovers of big government. A law that is admittedly designed to compel behavior can be upheld on a completely different ground.
That last point is one of the most disturbing ones. Roberts’s reasoning is that you set aside the language used by Congress and even how it structured the law, you imagine whether it could have imposed a tax to achieve the same thing, and if so you uphold it. So any law is now within Art 1 Sec. 8 so long as the Court can reimagine it as a tax.
I wish we were making that up, but it is what the Court actually did and said.
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I forgot this link above to the Crawford article.
http://www.forbes.com/sites/aroy/2012/07/01/the-supreme-courts-john-roberts-changed-his-obamacare-vote-in-may/
Roberts’s flip will no doubt be revered by future liberals as a great act of courage, setting principle aside to “do the right thing for the country.”
The New Deal had the switch in that saved nine. We’ll have to think of a name for this one.
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qb:
We’ll have to think of a name for this one.
The final nail?
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Scott,
It wouldn’t have been realistic for them to do it, and I’m sure he made his reasoning murky. The article in fact says he didn’t satisfactorily explain. I haven’t a doubt now that it was the political pressure. In his mind, he probably rationalized it, conveniently realizing that he was “wrong.” His decision joins Kennedy’s Casey flip and the switch in time in a pantheon of infamy.
I’ve only read some of Ginsburg’s opinion, btw, but it has essentially no connection at all to the Constitution. It doesn’t even try to. It just boils down to, Congress should have power to address “national problems,” which are whatever they say they are.
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There sure is a lot of hair on fire around here tonight.
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Michi, LMAO.
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I can see that my perspective is held in contempt. Goodbye, cruel world.
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qb, that’s pretty good too. Kudos.
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QB, obviously, none of us expected any different around here.
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Second what okie said, qb.
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From deep within the CBS article:
I wonder if Kennedy thinks states are sovereign enough to be able to secede.
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Seeing as absolutely nobody totally concurred with Roberts, he was being perhaps too clever by half in trying to split that baby. That happens when you are the smartest person in the room.
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