Roberts is probably writing the ObamaCare opinion. What does that tell us?

posted at 4:43 pm on June 25, 2012 by Allahpundit

Short answer: Almost nothing, but we’ve got 60+ hours to kill before the bomb drops so let’s get started on obsessively gaming this thing out.

First things first. There’s no guarantee that Roberts is writing for the Court, but because the justices tend to spread the opinion-writing duties around pretty evenly, it’s almost a lock that he’s the guy. According to Sean Trende, the only three members of the Court who haven’t yet written at least seven opinions this term are Sotomayor, Thomas, and the Chief. There’s no chance that Sotomayor is writing the majority opinion on O-Care; even if her side wins, the most senior justice in the majority gets to decide who writes the opinion. (The chief is considered most senior regardless of his actual tenure.) Roberts, Kennedy, Breyer, and Ginsburg are all senior to Sotomayor, so they’d all have to pass on an epochal opportunity to write the opinion for her to get it. Ain’t happening. There’s also virtually no chance that Thomas is writing the majority. He’s been on the Court for 20 years but he’s also relatively junior, trailing Roberts, Kennedy, and Scalia in tenure. And of course, he’s even more conservative than Scalia is, which makes him an unlikely pick to write a squishy opinion that’ll make Kennedy comfortable enough to win his vote. Long story short, Roberts is almost certainly handling this one. (Trende notes that Roberts didn’t write a single opinion in March or April, in fact. I wonder what his clerks were working on.)

Does that tell us anything about the majority on Thursday? Actually, yes: The long-feared scenario in which Kennedy joins with the liberals to form a 5-4 majority upholding ObamaCare is now impossible. Barring an almost unimaginable mindfark in which Roberts joins with the liberals to make it 5-4 while Kennedy votes with the conservatives, Roberts and Kennedy must be voting the same way. But … which way? Is it 5-4 to strike down the mandate (or the entire law) or is it 6-3 to uphold O-Care with Roberts and Kennedy joining the liberals? Your hunch on that depends on your impression of Roberts. I always assumed that, if this ended up as a 5-4 torpedoing of ObamaCare, Kennedy would be assigned the opinion because he is, after all, the swing vote and his reputation as a moderate who’ll side with the liberals in big cases would blunt some of the criticism afterward that this was a political vote. Maybe Roberts concluded that he can’t in good conscience fob this off on Kennedy; it’s his Court and this is the biggest decision it’ll ever make, so he’s going to man up and own it no matter how hysterical the cries of “politicization” are bound to be.

Or maybe he and Kennedy are voting with the liberals to uphold the law, either because they both agree with Breyer et al. on the merits or because Roberts is loath to see a case with this much political voltage end up in a 5-4 vote. There’s always a suspicion with chief justices that they worry a bit more about how the Court is perceived than the other members do; it’s the chief’s name that defines the era, after all, and it’s the chief who’s expected to build significant majorities in hot-button cases. (Earl Warren’s 9-0 decision in Brown v. Board of Education is the gold standard on that.) It may be that Roberts doesn’t want his era to be remembered for a galactically important Commerce Clause ruling decided by the narrowest, most contentious margin. Would he switch his vote to make it 6-3 if Kennedy was already determined to make it 5-4 to uphold? I don’t know. Mike Lee, his former law clerk, finds it hard to believe. Sean Trende, though, made an interesting observation on Twitter today: In the past, Scalia’s dissents in other cases have been grumpier than usual when he ended up losing on the big case of the term — not unlike today’s Arizona dissent, in fact. And that’s not just Trende saying that; that’s a former Scalia clerk whom Trende knows. (Guy Benson noted this also.) That’s weak, weak evidence of what Thursday will bring, but like I said, we’ve got 60 hours to kill. Weak evidence is better than none.

I said months ago that I thought we’d see a 6-3 vote to uphold. I’m less certain of that now but don’t think it’s nearly as unlikely as a lot of righty pundits seem to. It’s not hard to imagine a Roberts opinion larded up with lots of conservative-pleasing rhetoric about how mandates are unconstitutional generally but then ruling that they’re acceptable in the context of health care because of the unique nature of the market. (Kennedy seemed open to that logic at oral argument.) That’d be one way to split the baby; the other way would be if Roberts and Kennedy voted to strike down the mandate but preserve most of the rest of O-Care. That’s also distinctly possible, of course. It seems less likely to me that we’ll see anything more dramatic than that, like the entire statute being tossed. As I say, Roberts is going to fully own this now; that being so, nuking the Democrats’ signature legislative achievement in its entirety would be surprisingly bold.

Two parting thoughts. One: I predict we’ll see some sort of bogus rumor about a leaked decision circulating on Twitter or Drudge or somewhere in the next 48 hours. It won’t be true, but the anticipation’s so insanely high that some prankster won’t be able to resist. Two: We’ve been reading legal commentary on ObamaCare for two years and it occurred to me today that I don’t think I’ve seen a single analysis — not one — suggesting that one of the liberal justices might vote to strike this thing down. Granted, the balance of current Commerce Clause jurisprudence gives Congress expansive power in this area, but this is, after all, a case of first impression vis-a-vis the mandate — and yet, unless I’ve missed something, literally no one thinks any of the Court’s liberals might have qualms about taking this next step towards unchecked federal power over anything remotely commercial. Remember that on Thursday when you’re told that the Court’s conservatives are a bunch of politicized hacks.


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it tells me after the Ariz decision he is a squish

Conservative4ev on June 25, 2012 at 4:46 PM

It tells us he is probably the only one of them that could write an opinion that doesn’t look political, or is the only one who isn’t extremely passionate about it one way or the other.

Boy, the room they meet in to deliberate must look like a Hotel room after Motley Crue checks out. Gavels stuck in the wall. Ruth Baeder Ginsburg putting cigarettes out in the Conference room tables.

portlandon on June 25, 2012 at 4:48 PM

Reading on Hot Air that Roberts was retiring when Obama had just been elected was probably one of the worst hours of my life. What a punch to the gut. Remember that, Allah? I’m getting queasy thinking about it.

Marcus on June 25, 2012 at 4:49 PM

They better start building a vomitorium over at MSNBC now. And pad the walls too.

Thursday is funday.

fogw on June 25, 2012 at 4:49 PM

Remember that on Thursday when you’re told that the Court’s conservatives are a bunch of politicized hacks.

In the leftists’ sick minds you are a “political hack” only when you go against their Utopian ‘dreams’.

Schadenfreude on June 25, 2012 at 4:49 PM

Oh, fotgot…”it’s all for the children”.

Schadenfreude on June 25, 2012 at 4:50 PM

It tells me he is writing the commie care decision.

bgibbs1000 on June 25, 2012 at 4:50 PM

it tells me after the Ariz decision he is a squish

Conservative4ev on June 25, 2012 at 4:46 PM

Cry about it some more, then, and recite “lifetime tenure” over and over in your head. The Supreme Court is the Supreme Court. You want it to be full of hardcore partisans, advocate for direct election of justices.

I really can’t stand the people who take their frustrations out on Roberts, ignoring the four liberal justices, because these are usually the same folks who claim that one or two more Democrat presidents is all we’ll need for total victory.

KingGold on June 25, 2012 at 4:50 PM

Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please Oh Please

aunursa on June 25, 2012 at 4:50 PM

Doesn’t the AZ case show how unimportant oral argument at the court are? Decisions are obviously made before the lawyers even come into the room.

lorien1973 on June 25, 2012 at 4:50 PM

I’m still terrified at this sentence:

literally no one thinks any of the Court’s liberals might have qualms about taking this next step towards unchecked federal power over anything remotely commercial

This is why it is so important to get Obama out of office in November…even if it means voting for the San Diego Chicken or Romney.

search4truth on June 25, 2012 at 4:51 PM

Roberts may just think he can do a better job of selling a controversial decision with major ramafications than the other members. He would probably be right in my opinion.

KW64 on June 25, 2012 at 4:51 PM

It tells us that Roberts is probably writing the ObamaCare opinion. No more, no less.

The Rogue Tomato on June 25, 2012 at 4:51 PM

I’m nervous…

d1carter on June 25, 2012 at 4:51 PM

the other way would be if Roberts and Kennedy voted to strike down the mandate but preserve most of the rest of O-Care. That’s also distinctly possible, of course. It seems less likely to me that we’ll see anything more dramatic than that, like the entire statute being tossed.

I think at best we get the mandate thrown out. I can’t see them tossing the entire law. Yes, without the mandate, it would need to be scrapped as it no longer has any realistic funding mechanism in place, but the court will likely hand that responsibility back to the Congress and Obama.

Doughboy on June 25, 2012 at 4:51 PM

If he sensed Kennedy was voting with the liberals Roberts could join the vote in order to get to write the Majority opinion as narrowly as possible.

livefreerdie on June 25, 2012 at 4:51 PM

my eeyore flag is up…don’t think they’ll strike it down…not after today…

cmsinaz on June 25, 2012 at 4:52 PM

Two: We’ve been reading legal commentary on ObamaCare for two years and it occurred to me today that I don’t think I’ve seen a single analysis — not one — suggesting that one of the liberal justices might vote to strike this thing down. Granted, the balance of current Commerce Clause jurisprudence gives Congress expansive power in this area, but this is, after all, a case of first impression vis-a-vis the mandate — and yet, unless I’ve missed something, literally no one thinks any of the Court’s liberals might have qualms about taking this next step towards unchecked federal power over anything remotely commercial. Remember that on Thursday when you’re told that the Court’s conservatives are a bunch of politicized hacks.

This. A thousand times, this. I’ve been noticing the same thing, as well…the entire focus is on the conservative wing and whether or not votes might break the liberal way, but not the other way around. Yet, it is the conservatives pilloried as mere ideologues.

I have an increasingly bad feeling about the ruling but hope I’m wrong. I think it’s asinine, though, for Roberts to join the majority to uphold and write the opinion just to go along with Kennedy and make it less of a split decision. I care more about the constitutionality of these statutes, not how the Roberts court may be perceived by the elite punditry. I would hope he is, too.

changer1701 on June 25, 2012 at 4:52 PM

Allah,

Do Suspreme Court posts have more comments than Romney Posts?

Oil Can on June 25, 2012 at 4:52 PM

Roberts was probably always going to write the Majority Opinion. The only question is whether it’s a 5-4 Conservative win or 6-3 Liberal win.

livefreerdie on June 25, 2012 at 4:53 PM

Great analysis AP. I can’t imagine a universe where Roberts sides with the mandate, or maybe I just don’t want to. Roberts writes it = mandate gone, for a start. I’m still holding out that they’ll set the whole bag of poo on fire.

Meric1837 on June 25, 2012 at 4:54 PM

Obamacare must die.

El_Terrible on June 25, 2012 at 4:54 PM

The bigger key is will they leak who is writing the dissent? That will let us know how the vote went.

Who is extremely pissed about the AZ ruling today? Obama MUST BE DEFEATED!!!!!!!!

karenhasfreedom on June 25, 2012 at 4:55 PM

I am more worried than ever than this thing is going to be upheld. And then, what’s the difference between Obamacare and Romneycare?

besser tot als rot on June 25, 2012 at 4:55 PM

Who says that Roberts is even in the majority?

steebo77 on June 25, 2012 at 4:55 PM

Rush Limbaugh was alluding to something today regarding an insider he was in touch with saying that the SB1070 decision was made to soften the blow when Obamacare gets nuked. I hope he’s right.

Conservalicious on June 25, 2012 at 4:55 PM

I don’t think I’ve seen a single analysis — not one — suggesting that one of the liberal justices might vote to strike this thing down.

If it happens, it would be the Wise Latina.

aunursa on June 25, 2012 at 4:55 PM

This. A thousand times, this. I’ve been noticing the same thing, as well…the entire focus is on the conservative wing and whether or not votes might break the liberal way, but not the other way around. Yet, it is the conservatives pilloried as mere ideologues.

I have an increasingly bad feeling about the ruling but hope I’m wrong. I think it’s asinine, though, for Roberts to join the majority to uphold and write the opinion just to go along with Kennedy and make it less of a split decision. I care more about the constitutionality of these statutes, not how the Roberts court may be perceived by the elite punditry. I would hope he is, too.

changer1701 on June 25, 2012 at 4:52 PM

Don’t hold your breath.

bgibbs1000 on June 25, 2012 at 4:56 PM

One thing we know for sure: Obama has a different tantrum planned for each scenario.

Kataklysmic on June 25, 2012 at 4:56 PM

The liberal justices are the politicized ones. They think unchecked federal power is just fine. Bunch of socialist retards.

JAM on June 25, 2012 at 4:56 PM

Is Miss Nancy on suicide watch?

Pork-Chop on June 25, 2012 at 4:57 PM

Couldn’t it be 5-4 to uphold, with Roberts, Scalia, Thomas, and Alito in the minority?

steebo77 on June 25, 2012 at 4:57 PM

I’m still holding out that they’ll set the whole bag of poo on fire.

Meric1837 on June 25, 2012 at 4:54 PM

That’s merely the icing on the cake. All we really need scrapped is the mandate, because the whole opera falls apart without.

If the rest of the law goes, Obama has absolutely nothing to show for his presidency except the Lilly Ledbetter Act and backdoor amnesty, and if the rest of the law stays, more power to the GOP who will be motivated to cobble together a majority to sweep this garbage out the door.

KingGold on June 25, 2012 at 4:57 PM

Rush Limbaugh was alluding to something today regarding an insider he was in touch with saying that the SB1070 decision was made to soften the blow when Obamacare gets nuked. I hope he’s right.

Conservalicious on June 25, 2012 at 4:55 PM | Delete | Delete and Ban

He is very good friends with Clarence Thomas.

bgibbs1000 on June 25, 2012 at 4:57 PM

livefreerdie on June 25, 2012 at 4:51 PM

im not sure that makes sense. if they vote is to uphold the law its stands as is. the opinion wont matter one wit, they cant water down the bill judicially.

chasdal on June 25, 2012 at 4:58 PM

no matter how hysterical the cries of “politicization” are bound to be.

The hilarious irony of that never fails to amuse.

squint on June 25, 2012 at 4:58 PM

The liberal justices are the politicized ones. They think unchecked federal power is just fine. Bunch of socialist retards.

JAM on June 25, 2012 at 4:56 PM

To a liberal judge the Consitution is only a suggestion, if that…

Oil Can on June 25, 2012 at 4:59 PM

Ezra Klein is jittery, and it’s your fault “Republicans”.

Schadenfreude on June 25, 2012 at 4:59 PM

Just curious… If the Justices realize it is being repealed, would the libs go ahead and vote to repeal just to appear like they are actually reading the constitution?

jeffn21 on June 25, 2012 at 4:59 PM

The bigger key is will they leak who is writing the dissent? That will let us know how the vote went.

Who is extremely pissed about the AZ ruling today? Obama MUST BE DEFEATED!!!!!!!!

karenhasfreedom on June 25, 2012 at 4:55 PM

Ruth Bader Ginsburg. It will be her departing opinion.

portlandon on June 25, 2012 at 4:59 PM

If it happens, it would be the Wise Latina.

aunursa on June 25, 2012 at 4:55 PM

I was very happy with the Wise Latina today (voting to uphold immigration status checks). The left was calling her a “coconut like Marco Rubio” a race traitor, a Latino hater, a shame to Latinos etc

El_Terrible on June 25, 2012 at 4:59 PM

Couldn’t it be 5-4 to uphold, with Roberts, Scalia, Thomas, and Alito in the minority?

steebo77 on June 25, 2012 at 4:57 PM

The thinking is that in that scenario, Roberts would switch his vote so that he could write a very narrow ruling.

aunursa on June 25, 2012 at 4:59 PM

Rush Limbaugh was alluding to something today regarding an insider he was in touch with saying that the SB1070 decision was made to soften the blow when Obamacare gets nuked. I hope he’s right.

Conservalicious on June 25, 2012 at 4:55 PM

Please give me more I need toget out of this depressed stage

Conservative4ev on June 25, 2012 at 5:00 PM

it tells me after the Ariz decision he is a squish

Conservative4ev on June 25, 2012 at 4:46 PM

Yep, something was in his closet and her name was undocumented Maria who did the family’s laundry so that’s why he voted THAT way and stabbed Arizona in the back 3 times while making the La Raza/ACLU lawyers happy as they’ll sue at the drop of a hat planting posers as drivers with no papers but WAIT – nobody will pick up the phone from ICE.
Arizona has become a defacto Mexican state. Gateway to South America thanks for ROBERTS.

Now for healthcare? He won’t vote overturning the whole thing and the mandate? Forcing people to buy insurance? He’ll leave that open like he did SB1070 for future legal action.

What’s under those robes? Pink panties. The only 2 that have any guts are Scalia and Thomas. No wonder they want to quit.

athenadelphi on June 25, 2012 at 5:00 PM

I said months ago that I thought we’d see a 6-3 vote to uphold. I’m less certain of that now but don’t think it’s nearly as unlikely as a lot of righty pundits seem to. It’s not hard to imagine a Roberts opinion larded up with lots of conservative-pleasing rhetoric about how mandates are unconstitutional generally but then ruling that they’re acceptable in the context of health care because of the unique nature of the market. (Kennedy seemed open to that logic at oral argument.)

Allah’s inner Eeyore is speaking to him again. Listen to the elephant on the other shoulder!

Steve Z on June 25, 2012 at 5:01 PM

Roberts was probably always going to write the Majority Opinion. The only question is whether it’s a 5-4 Conservative win or 6-3 Liberal win.

livefreerdie on June 25, 2012 at 4:53 PM

I guess you’re probably right. My way of thinking was: (1) not Roberts – conservatives win; or (2) Roberts – liberals might win. And not because there is anything wrong with Roberts, but that Roberts would rather write as narrow an opinion as possible than leave it to Kennedy or one of the others to possibly write a sweeping decision.

besser tot als rot on June 25, 2012 at 5:01 PM

If the rest of the law goes, Obama has absolutely nothing to show for his presidency except the Lilly Ledbetter Act and backdoor amnesty, and if the rest of the law stays, more power to the GOP who will be motivated to cobble together a majority to sweep this garbage out the door.

KingGold on June 25, 2012 at 4:57 PM

Don’t forget that Obama single-handedly slayed Osama bin Laden. If Obamacare gets neutered, we could ironically see him run heavily on his foreign policy record(well, the good parts of it anyway). Who would’ve ever anticipated that back in 2008?

Doughboy on June 25, 2012 at 5:01 PM

Maybe Scalia is grumpy because Obama’s administration is raping our form of government?

gwelf on June 25, 2012 at 5:01 PM

I love delusional leftists.

Schadenfreude on June 25, 2012 at 5:01 PM

I would like to know who’s payroll he’s on.

Mr. Arrogant on June 25, 2012 at 5:02 PM

At a minimum it tells us the Chief Justice wants to author the opinion for probably the most important Supreme Court decision in several decades, at least.

I would think he would want to do that no matter which way the decision goes.

farsighted on June 25, 2012 at 5:03 PM

We’ve been reading legal commentary on ObamaCare for two years and it occurred to me today that I don’t think I’ve seen a single analysis — not one — suggesting that one of the liberal justices might vote to strike this thing down.

Me neither, because they are hacks. Just like all the journalists who keep fretting about republican appointees being “politicized” while Democrats never seem to appoint a swing vote and there’s zero discussion of any Democrat appointee breaking ranks on any close case.

forest on June 25, 2012 at 5:03 PM

It tells he has already written it – probably months ago.

jake-the-goose on June 25, 2012 at 5:03 PM

If the rest of the law goes, Obama has absolutely nothing to show for his presidency except the Lilly Ledbetter Act and backdoor amnesty, and if the rest of the law stays, more power to the GOP who will be motivated to cobble together a majority to sweep this garbage out the door.

KingGold on June 25, 2012 at 4:57 PM

Don’t forget that Obama single-handedly slayed Osama bin Laden. If Obamacare gets neutered, we could ironically see him run heavily on his foreign policy record(well, the good parts of it anyway). Who would’ve ever anticipated that back in 2008?

Doughboy on June 25, 2012 at 5:01 PM

Also don’t forget the Stimulus, Cash for Clunkers, and the Solyndra success story.

aunursa on June 25, 2012 at 5:04 PM

We’ve been reading legal commentary on ObamaCare for two years and it occurred to me today that I don’t think I’ve seen a single analysis — not one — suggesting that one of the liberal justices might vote to strike this thing down. Granted, the balance of current Commerce Clause jurisprudence gives Congress expansive power in this area, but this is, after all, a case of first impression vis-a-vis the mandate — and yet, unless I’ve missed something, literally no one thinks any of the Court’s liberals might have qualms about taking this next step towards unchecked federal power over anything remotely commercial. Remember that on Thursday when you’re told that the Court’s conservatives are a bunch of politicized hacks.

None of the four liberal justices are known as intellectual heavyweights. Their opinions are predictable knee-jerk liberalism translated into judicialese. And Kennedy is no genius, either.

novaculus on June 25, 2012 at 5:04 PM

We’ll see what it means on Thursday.

totherightofthem on June 25, 2012 at 5:04 PM

It would be nice if the conservative justices plus Kennedy decided to put the federal government back in its bottle and put a stop to the abuse of the Constitution to justify every damn liberal program that exists now and may exist in the future.

Any thinking, objective reader of the Constitution with a passing knowledge of the Founders would know that the totality of Obamacare is unconstitutional. If it’s found to be anything but then the Constitution is all but dead. It will have become a joke.

Charlemagne on June 25, 2012 at 5:05 PM

There’s always a suspicion with chief justices that they worry a bit more about how the Court is perceived than the other members do…

If the Chief Justice sides with the liberals for the sake of perception, I wonder how well his tenure will be perceived when Obamacare bankrupts this country, and he sets the precedent that the federal government can force you to buy a product or service.

My perception will be that for 236 years the people of the United States were citizens until Chief Justice Roberts made us all subjects.

MessesWithTexas on June 25, 2012 at 5:05 PM

Roberts was probably always going to write the Majority Opinion. The only question is whether it’s a 5-4 Conservative win or 6-3 Liberal win.

livefreerdie on June 25, 2012 at 4:53 PM

You have a very unfortunate name, too close a weak tea liberal. Be prepared, just saying.

And, I agree, it’s gonna be close and after today, I’m a little more nervous.

CherryBombsBigBrownBeaver on June 25, 2012 at 5:05 PM

Maybe he just lost a hand of cards, or something.

faraway on June 25, 2012 at 5:06 PM

If the mandate is not struck down the TEA Party’s wrath will have no bounds. Such strong tea there never will have been.

Schadenfreude on June 25, 2012 at 5:08 PM

Maybe he just lost a hand of cards, or something.

faraway on June 25, 2012 at 5:06 PM

Picked the short straw?

totherightofthem on June 25, 2012 at 5:08 PM

I know this is all conjecture at this point Allah but are you saying that basically the decision will come down to politics and how the decision looks as opposed to whether or not the law is constitutional? Because if this is really how SC cases are decided, this country is in bigger trouble than a possible second Obama term.

hopeful on June 25, 2012 at 5:08 PM

If you were a new Supreme Court Justice, wouldn’t it bug you that everyone just assumes to know how you will vote on an issue?

That they think you’re a rubber stamp for the President?

And why should Justice Kennedy get all that attention all the time in the big cases?

Move over, Kennedy. I think Sotomayor may give you a run for your money to be the “Decider”.

TeleL on June 25, 2012 at 5:08 PM

My perception will be that for 236 years the people of the United States were citizens until Chief Justice Roberts made us all subjects.

MessesWithTexas on June 25, 2012 at 5:05 PM

Ditto. Well played.

totherightofthem on June 25, 2012 at 5:09 PM

ObamaCare Mandate ruled unconstitutional on InTrade:

78.1% Chance – Up 2.8% since news broke of Roberts writing the majority

Norwegian on June 25, 2012 at 5:09 PM

know this is all conjecture at this point Allah but are you saying that basically the decision will come down to politics and how the decision looks as opposed to whether or not the law is constitutional? Because if this is really how SC cases are decided, this country is in bigger trouble than a possible second Obama term.

hopeful on June 25, 2012 at 5:08 PM

Amen

Conservative4ev on June 25, 2012 at 5:09 PM

Your hunch on that depends on your impression of Roberts.

My impression of him used to be quite favorable, but his decision to join the libs and Kennedy in striking down most of AZ’s 1070 law makes me wonder now. Did I misjudge him? Did that seizure he had a few years ago damage his brain? What the h*ll was he thinking?

I have no idea what he’ll do in the Obamacare case. Nothing would surprise me at this point.

AZCoyote on June 25, 2012 at 5:10 PM

I was very happy with the Wise Latina today (voting to uphold immigration status checks). The left was calling her a “coconut like Marco Rubio” a race traitor, a Latino hater, a shame to Latinos etc

El_Terrible on June 25, 2012 at 4:59 PM

Yeah, they really don’t like it when one of their own starts thinking for themselves.

squint on June 25, 2012 at 5:10 PM

So if the manadte is rulesd unconstituional and the rest of the bill is upheld, that gives Obama the oppurtunity to say that we conservatives want to kill off teh sick and not give healthcare, autistic children to fend for themselves?

Conservative4ev on June 25, 2012 at 5:11 PM

There’s another possibility. Perhaps the justices know that Obama has no chance in November, so they’re planning on either delay or upholding, knowing (hoping!) that Mitt and a conservative congress will pull the plug on the whole thing, thus saving the Court from a 5-4 monument of the Roberts court that has lasting consequence.

Ginsberg sounded a little cross a week or two ago as well. She may be suffering “Scalia grumpiness” as well, especially if Sotomayor jumps to the Conservative side.

Nethicus on June 25, 2012 at 5:11 PM

Rush Limbaugh was alluding to something today regarding an insider he was in touch with saying that the SB1070 decision was made to soften the blow when Obamacare gets nuked. I hope he’s right.

Conservalicious on June 25, 2012 at 4:55 PM

I say we nuke the law from orbit… it’s the only way to be sure.

teke184 on June 25, 2012 at 5:11 PM

I’m nervous…

d1carter on June 25, 2012 at 4:51 PM

me too …

IF found to be constitutional … will Romney still kill it ?

conservative tarheel on June 25, 2012 at 5:12 PM

I daydream it’s Alito to overturn

Kingme on June 25, 2012 at 5:13 PM

After today’s decision against AZ, I’m sure O’Scare will be upheld too.
RIP my country…..now our future elections will be like the ones the other Hussein ( in Baghdad) used to have

burrata on June 25, 2012 at 5:13 PM

The White House knows, there should be no doubt of that. We might be able to therefore discern what the decision is based on little Bammie’s schedule and/or what he does or announces in the next day or two.

If it’s a downer for him he will want a major distraction. If it’s good for him a major WH party will be in the works. Anyone have the inside track on lobster or Wagyu beef orders?

slickwillie2001 on June 25, 2012 at 5:13 PM

Was Scalia’s dissent this morning hitting the majority for inconsistency with the upcoming Obamacare ruling, or a preview of a major Rant on Thursday???

My WAG is that Scalia wanted to toss the entirety of the 2700 pages of ObamaCare out, it Roberts/Kennedy split the baby and killed the mandate, giving We The People a major, but not complete victory… Scalia will have a scathing opinion on why the entire law should have been tossed.

phreshone on June 25, 2012 at 5:13 PM

I am more worried than ever than this thing is going to be upheld. And then, what’s the difference between Obamacare and Romneycare?

besser tot als rot on June 25, 2012 at 4:55 PM

The American people have repeatedly told their leaders they don’t want Obamacare. Isn’t Romneycare at least supported by a majority in Massachusetts? I’m not defending Romneycare, but if Massachusetts wants to be a statist state, then let them. I just don’t want it going national. And yes, I truly wish we didn’t have Mittens as the Republican presidential nominee, but I’ve already lost that argument.

Gladtobehere on June 25, 2012 at 5:13 PM

I don’t get the correlation between the Arizona case and Obamacare. They’re so vastly different.

So is it just me, or does anyone else see that one is not related to the other?

Grace_is_sufficient on June 25, 2012 at 5:13 PM

There’s another possibility. Perhaps the justices know that Obama has no chance in November, so they’re planning on either delay or upholding, knowing (hoping!) that Mitt and a conservative congress will pull the plug on the whole thing, thus saving the Court from a 5-4 monument of the Roberts court that has lasting consequence.

Ginsberg sounded a little cross a week or two ago as well. She may be suffering “Scalia grumpiness” as well, especially if Sotomayor jumps to the Conservative side.

Nethicus on June 25, 2012 at 5:11 PM

Yea that reminds me wasn’t Ginsburg the one during the hearing saying let’s not take a wrecking ball to it due to a no severability clause. I think that told me she new the mandate was dead and was trying to save it or some of it

Conservative4ev on June 25, 2012 at 5:14 PM

So all through the oral arguments, Virelli and Team SCOAMF got pimp-slapped 9 ways to Sunday and even Kennedy sounded dubious of this entire enterprise.

And now, everyone seems to think that they’ll either:

a) strike the mandate but keep the law just so that people won’t be upset at them even though they said several times that it’s not their jobs to re-write the law to make it constitutional and that keeping the remainder made zero sense or,

b) vote 6-3 to uphold the entire law to prevent from being called names, the Constitution and people of the United States be damned.

This is just beyond belief. I can’t even allow myself to think that scenario B would happen, and A would just open up a can of worms.

It has to die. Completely. Thursday. It has to.

Rixon on June 25, 2012 at 5:14 PM

That’s merely the icing on the cake. All we really need scrapped is the mandate, because the whole opera falls apart without.

KingGold on June 25, 2012 at 4:57 PM

No, most of us want to whole thing scrapped because otherwise Obama or your candidate Romney will try to save the rest.

FloatingRock on June 25, 2012 at 5:14 PM

Couldn’t it be 5-4 to uphold, with Roberts, Scalia, Thomas, and Alito in the minority?

steebo77 on June 25, 2012 at 4:57 PM

Under that scenario, why would Roberts be writing the opinion? His side wouldn’t have won.

Waggoner on June 25, 2012 at 5:15 PM

Don’t forget that Obama single-handedly slayed Osama bin Laden. If Obamacare gets neutered, we could ironically see him run heavily on his foreign policy record(well, the good parts of it anyway). Who would’ve ever anticipated that back in 2008?

Doughboy on June 25, 2012 at 5:01 PM

His original claim to fame was he opposed to the Iraq war before it was cool, apart the South Side of Chicago various other red enclaves. So an emphasis was likely to be foreign policy. What is surprising is that it would be for his claiming success in continuing GWB’s policies.

pedestrian on June 25, 2012 at 5:16 PM

Roberts vote in AZ I view as a counter-balance for what’s to come.

Based on Ginsburgs comments, it sounds like it will be 5-4. I don’t see Kennedy or Roberts upholding the mandate.

Either way its a win for Conservatives.

If somehow we lose, however improbable that may be, the law is unpopular it will give Conservatives across America a platform to run on and to galvanize Conservatives and Independents into a unified block akin to 2010. Also, a loss would most likely force Romney (assuming he wins) to pick a very Conservative Justice or two in his term.

Afterseven on June 25, 2012 at 5:16 PM

Conservative4ev..
Rush sounded cryptic, but not worried about how the court would rule on Obamacare. He wanted to say more and almost did, but then he stopped himself.

Conservalicious on June 25, 2012 at 5:17 PM

Given that Obamacare is a sure loser for the Democrats, releasing this decision on Thursday is a good thing. This will definitely raise its profile and that’s always good news.

The best news would be whichever outcome raises its profile the most and for the longest time. That is clearly a 5-4 decision to strike down the mandate. Even though the MSM will whine and spin, they will have to discuss this in great detail and the predictions that this couldn’t possibly happen will not be ignored. The MSM will not be able to implement their usual cover-up strategy for anything that hurts the Dems.

So, what will it be? Well, pure logic favors the 5-4 overturn. The individual mandate is unconstitutional — that much has been discussed and established here quite clearly. For the law to be upheld, Kennedy has to make an illogical choice. The sane members of the court will talk him out of that.

Since the supermarkets may run out of popcorn, you might want to stock up.

Pythagoras on June 25, 2012 at 5:17 PM

John, it would be nice to see you write the opinion. But don’t rub it in like Obama did to you back on January 27, 2010 during Obama’s State of The Union spectacle. I know you are above politics and have handled this put down by Obama with dignity. But I do remember seeing you squirm in your seat while Obama was frying your bacon. But we all know that you have a strong constitution and things like this don’t move you to anger. Even so, you might want to refresh your memory by reading THIS LINK. But don’t let me influence your decision when you write this decision because if anybody is worthy of this task, it is Mr. John Roberts, Esq, SCOTUS Leader, patriot, trustworthy, truthful, faithful. That’s right. I’m referring to you, John. But if you get a chance, click on the above link just in case you might have forgotten how pissed off you were. This could be payback time and I know you need it to get even with that black mutha…but please do it with compassion, statesmanship, and tenderness.

PS: Don;t forget to click the link, Johnny.

timberline on June 25, 2012 at 5:18 PM

My WAG is that Scalia wanted to toss the entirety of the 2700 pages of ObamaCare out, it Roberts/Kennedy split the baby and killed the mandate, giving We The People a major, but not complete victory… Scalia will have a scathing opinion on why the entire law should have been tossed.

phreshone on June 25, 2012 at 5:13 PM

I agree, that’s why Roberts has written so few opinions. His clerks were bogged down reading the bill.

pedestrian on June 25, 2012 at 5:18 PM

The will overturn only pieces of the law, just like the AZ decision.

This is why it’s taking so long.

/ or something

faraway on June 25, 2012 at 5:19 PM

If you oppose Obama/Romneycare as I do, please vote for Gary Johnson.

FloatingRock on June 25, 2012 at 5:19 PM

In the past, Scalia’s dissents in other cases have been grumpier than usual when he ended up losing on the big case of the term — not unlike today’s Arizona dissent, in fact.

But if the vote is 6-3 to uphold, Scalia will almost certainly be writing a long, scathing dissent. So why let out his aggression on a less important case like the SB1070 ruling?

Good Solid B-Plus on June 25, 2012 at 5:20 PM

I really don’t know what some of y’all are smokin’-but put it down, whatever it is.
There is NO EFFING WAY that Roberts will vote to uphold the mandate. NONE. Nada. Zilch. Bupkiss.
Got it?
Good.

annoyinglittletwerp on June 25, 2012 at 5:20 PM

Conservative4ev..
Rush sounded cryptic, but not worried about how the court would rule on Obamacare. He wanted to say more and almost did, but then he stopped himself.

Conservalicious on June 25, 2012 at 5:17 PM
Hmm Thank You

Conservative4ev on June 25, 2012 at 5:21 PM

FloatingRock on June 25, 2012 at 5:19 PM

Only if you want Zero to have a second term.
You obviously don’t have a problem with that scenario.
Mitt 2012!

annoyinglittletwerp on June 25, 2012 at 5:22 PM

I have no clue as to how it’ll all turn out, I don’t watch the Court much. I just know that I depend a great deal on modern medicine, as do many folks I know, and we’re totally screwed if Obamacare isn’t struck down or repealed. That’s all I hear in doctor’s officies. People are desperately worried.

The current system may not be perfect, but this bill is an abomination.

I’ve dealt with private insurance.. and with government controled medicaid and workers comp. Private insurance has never ever screwed me over like the government did. They put me through months of Hell, cutting me off, cancelling my claim in workers comp, because they had screwed it up so badly, they tried to memory hole it, and me. An attorney turned that around.. But.. government weasals put me through Hell just to cover their a**’s.

and they think millions like me trust them to run healthcare?

I’d see them in Hell first.

mark81150 on June 25, 2012 at 5:23 PM

If you oppose Obama/Romneycare as I do, please vote for Gary Johnson.

FloatingRock on June 25, 2012 at 5:19 PM

Puff Puff Pass!

tom daschle concerned on June 25, 2012 at 5:24 PM

Roberts was probably always going to write the Majority Opinion. The only question is whether it’s a 5-4 Conservative win or 6-3 Liberal win.

livefreerdie on June 25, 2012 at 4:53 PM

I agree.

And I don’t see any reason to believe Roberts would have allowed one of Scalia, Thomas or Alito to write opinion, for the same reasons he wouldn’t allow one of the 4 liberal judges to do it.

I’m fairly sure Roberts doesn’t want either a majority decision that he finds too accepting of federal authority and power or one that strikes down the Medicaid expansion, completely revolutionizing the post-New Deal constitutional framework – as I suspect Scalia et all have become more willing to do in recent years.

So, either 6-3 to uphold or 5-4 to strike down the mandate and uphold the rest of the law, in both cases with a very narrow-tailored opinion.

joana on June 25, 2012 at 5:24 PM

Rush Limbaugh was alluding to something today regarding an insider he was in touch with saying that the SB1070 decision was made to soften the blow when Obamacare gets nuked. I hope he’s right.

Conservalicious on June 25, 2012 at 4:55 PM

If it happens, it would be the Wise Latina.

aunursa on June 25, 2012 at 4:55 PM

I’ll throw out my 2 cents – I believe the mandate is going down 6-3, with the Wise Latina being the 6th vote against it.

I was very happy with the Wise Latina today (voting to uphold immigration status checks). The left was calling her a “coconut like Marco Rubio” a race traitor, a Latino hater, a shame to Latinos etc

El_Terrible on June 25, 2012 at 4:59 PM

Last night I was talking to someone about the upcoming votes, and I told her that the Wise Latina seems to have an independent streak that makes her, in my mind, the disappointed Left’s equivalent to our Sandra Day O’Conner…

Bizarro No. 1 on June 25, 2012 at 5:24 PM

The Constitution establishes this government is owned by the people.

It exists and was created to serve them.

When it no longer serves the people- what has it become?

With the popular will of the American people wholly and fully against this mandate, why it there even a question about how the court should vote?

That is the basis upon which this decision should be made. If not, it is a sad day for our democratic republic.

There is also no question why the Founder originally envisioned no such role for the Court, whose members had built a temple unto themselves.

If this decision goes against the people’s will, this court and specifically the Chief Justice will be reviled for generations.

And in November, we will give our opinion with one of the few tools we have left to reign in this out of control government- our vote.

Marcus Traianus on June 25, 2012 at 5:25 PM

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