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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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

No – if Roberts is in the minority, he cannot write the MAJORITY opinion.

Thus, the “5-4 strike down” or “6-3 uphold” scenarios.

So, if we were CERTAIN about Roberts writing it, then it would be a little bit of a tell. But we are still just speculating. Probably a good bet.

Reading AP’s comments has swayed me to favor the 6-3 scenario. God, I hope not. But it does make sense for him to be writing it for the purpose of moderating it as much as possible.

connertown on June 25, 2012 at 5:25 PM

Take it to the bank: Mandate fails but rest remains.

the new aesthetic on June 25, 2012 at 5:25 PM

Notice that over the years, a number of justices nominated by Republican presidents have been utter failures and migrated over to the leftists side of the bench, but that the opposite has NEVER to my knowledge happened.

Sotomayor, peut-être? At least in this case?

Rixon on June 25, 2012 at 5:26 PM

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

So, if upheld, the difference would be that Romney implemented a popular (? I don’t know that this is true), and perfectly legal big government, statist program on the state level that Romney said should be used as a model for the nation. And Obama implemented a less popular, and equally legal big government, statist program on the national level? But I’m to believe that one is a communist and the other is a champion of the free market? I’m thinking that I must have missed something somewhere.

Romney (and, more importantly, all of us) had better pray that ObamaCare goes down in flames on Thursday.

besser tot als rot on June 25, 2012 at 5:26 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

A couple of Fridays ago (on what was reportedly the deadline for SCOTUS justices to turn in their dissenting opinions), Ginsburg said at a public forum that one of the issues the court “must decide” in the Obamacare case is the issue of severability. A lot of commentators thought that was a “tell” that the Obamacare insurance mandate would be invalidated, because there is no reason for the court to discuss, let alone decide, the severability issue unless they first decide the mandate is unconstitutionl.

Of course, there is always the possibility that Ginsburg was just jerking people around, for funsies, because she knows that everyone is waiting anxiously for the decision and she wanted to do a head fake.

AZCoyote on June 25, 2012 at 5:27 PM

Roberts is writing the opinion because it will be the signature case for the Roberts Court until the “U.S. House of Representatives vs President Barack Obama’s Assertion of Executive Privilege” decision is written.

The mandate will be struck down. I’ll put my pick in for 6-3 against it.

The court will rule the lack of severability was the intent of the Congress and overturn the ACA because of it by a vote of 5-4.

Scalia’s dissent today was targeted at what he sees as selective enforcement to suit ideology by the Obama administration.

Ginsberg’s comments earlier in the month was the tip off.

Justice Roberts writing the majority decisions described above takes the obvious political scapegoats out of the picture AND sends a message back to the Obama administration.

Your attempts to influence the court are beyond the pale and will not be tolerated.

AP – you need to talk to your doctor about your EEYORE’ism. It clearly impairs your cirtical reasoning capabilities.

PolAgnostic on June 25, 2012 at 5:27 PM

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

FloatingRock on June 25, 2012 at 5:19 PM

Because we really need Obama nominating more liberal judges in the next 4 years.

If people like you had your way, Dukakis would have beaten Bush 41 in 88 and instead of Clarence Thomas we would have some Ginsburg clone – and we wouldn’t even have this discussion because the Court would quickly uphold Obamacare and affirm the constitutionality of federal government mandates.

joana on June 25, 2012 at 5:27 PM

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.

Was that statement written with a straight face?

Citizen’s United was 5-4, and the Court doubled down on that today, also 5-4.

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.

Sounds reasonable to me, and enough to make Scalia cranky.

I’m still predicting 6-3 against the mandate, with Sotomayor crossing over. The rest of the law stands.

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

I think Scalia has been working his charms on her. There’s a lot more substance to Sotomayor than to that petty party hack Kagan. She may prove to be a very interesting Justice, ironically the left’s version of David Souter.

Mr. Arkadin on June 25, 2012 at 5:30 PM

It means they’re going to have a landmark 5-4 vote to turn back the dial on decades of over-reaching on Commerce Clause decisions while overturning Obamacare in the process. Why do I think so? Because finding for Obamacare would mean that the government could make you buy whatever they decide you should. Translation for libtards, that means if Dick Cheney becomes god-emperor he could make you buy cheap handguns and pay extra taxes to buy cheap handguns for indigent Republican-leaning voters.

Knott Buyinit on June 25, 2012 at 5:30 PM

Only if you want Zero to have a second term.

annoyinglittletwerp on June 25, 2012 at 5:22 PM

No, but maybe you do. If you want to know what I want, watch the video.

FloatingRock on June 25, 2012 at 5:31 PM

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.

Let’s not allow that to prevent us from writing 6 more paragraphs about it :-)

MJBrutus on June 25, 2012 at 5:32 PM

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

How come no one ever says the reverse about the liberal justices, knowing they will vote en bloc regardless of the Constitutional merits? I guess such behavior is simply expected.

So, Roberts should make the right call; and let critics be damned!

Droopy on June 25, 2012 at 5:32 PM

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

FloatingRock on June 25, 2012 at 5:19 PM

Pshaw. I thought I smelled Sister Mary Juana’s prayer candles.

Even if your pipe dream came true (it won’t, by the way,) I’d give President Johnson two months, tops, before you and your ilk declare him a RINO traitor and urge Chuck Baldwin to primary him.

KingGold on June 25, 2012 at 5:34 PM

FloatingRock on June 25, 2012 at 5:19 PM

If you think FloatingRock is a FUD-spewing troll, vote Mitt!

MJBrutus on June 25, 2012 at 5:34 PM

If people like you had your way, Dukakis would have beaten Bush 41 in 88 and instead of Clarence Thomas we would have some Ginsburg clone – and we wouldn’t even have this discussion because the Court would quickly uphold Obamacare and affirm the constitutionality of federal government mandates.

joana on June 25, 2012 at 5:27 PM

Right. Because other than the difference between Thomas not being nominated, nothing else over the last 24 years would have changed at all. So all subsequent justices nominate, presidents/congresses elected, and policy enacted would have been exactly the same.

besser tot als rot on June 25, 2012 at 5:34 PM

I’d give President Johnson two months, tops, before you and your ilk declare him a RINO traitor and urge Chuck Baldwin to primary him.

KingGold on June 25, 2012 at 5:34 PM

That doesn’t even make sense, he’s not running as a R so he can’t be a RINO.

FloatingRock on June 25, 2012 at 5:35 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

I agree. A 6-3 to uphold is even less likely than a 6-3 to overturn.

I see the Wise Latina voting to overturn before I see Roberts voting to uphold.

Norwegian on June 25, 2012 at 5:36 PM

I’m so very confused by the posters on this site. How is the Arizona ruling not a victory? Jan claimed victory and the Democrats of Arizona claimed defeat. The most important part of the bill was upheld. I’ll probably get tarred and feathered as a RINO, but I thought the court made exactly the right ruling. Going into this week, I expected them to overturn SB 1070 but also overturn the mandate. Given that they upheld the most important part of SB 1070, with not even one member of the court voting to strike down the “show me your papers” piece, I am actually thinking it’s a 6-3 decision to overturn the mandate, 5-4 in favor of striking down the whole law.

mboyle1988 on June 25, 2012 at 5:37 PM

Rixon, in the past fifty or so years, the only justice picked by a Democrat who ended up disappointing his party was Byron White. The modern Left knows what it is doing when it comes to SCOTUS picks.

McDuck on June 25, 2012 at 5:37 PM

I never try to predict, or get exited about any ruling. It stings a lot less that way. If I were a betting lady I would say that Thursday is “get out of dodge day”. It can go either way, but since they saved it for last, they will probably uphold the whole 9 yards of it…then get out of dodge when the stuff hits the fan.

shar61 on June 25, 2012 at 5:38 PM

How about this line of thought.

Oral arguments and the vote for ACA came before the oral arguments for Arizona.

Roberts and Kennedy, knowing the ACA ruling, decided to through a bone to the liberals in order to protect their “Reputation” of the court with the public.

The ACA mandate is going down. Not sure about whole law. Maybe that’s why Scalia was really cranky in his Arizona dissent.

WisRich on June 25, 2012 at 5:38 PM

Right. Because other than the difference between Thomas not being nominated, nothing else over the last 24 years would have changed at all. So all subsequent justices nominate, presidents/congresses elected, and policy enacted would have been exactly the same.

besser tot als rot on June 25, 2012 at 5:34 PM

Add a ceteris paribus to my comment if you really need it.

And sure things would change: Dukakis would have governed way to the left of Bush. No reason to believe they’d have changed for the better.

joana on June 25, 2012 at 5:38 PM

That doesn’t even make sense, he’s not running as a R so he can’t be a RINO.

FloatingRock on June 25, 2012 at 5:35 PM

Curiously, you’re not denying the “traitor” part, nor the part about you turning on him at the drop of a hat.

But yes, fine, “RINO” is a misnomer. Phony libertarian, perhaps? LINO?

KingGold on June 25, 2012 at 5:38 PM

Roberts is writing the opinion because it will be the signature case for the Roberts Court until the “U.S. House of Representatives vs President Barack Obama’s Assertion of Executive Privilege” decision is written.

The mandate will be struck down. I’ll put my pick in for 6-3 against it.

The court will rule the lack of severability was the intent of the Congress and overturn the ACA because of it by a vote of 5-4.

Scalia’s dissent today was targeted at what he sees as selective enforcement to suit ideology by the Obama administration.

Ginsberg’s comments earlier in the month was the tip off.

Justice Roberts writing the majority decisions described above takes the obvious political scapegoats out of the picture AND sends a message back to the Obama administration.

Your attempts to influence the court are beyond the pale and will not be tolerated.

AP – you need to talk to your doctor about your EEYORE’ism. It clearly impairs your cirtical reasoning capabilities.

PolAgnostic on June 25, 2012 at 5:27 PM

I like it, I just wish it was already so

Conservative4ev on June 25, 2012 at 5:38 PM

If you think FloatingRock is a FUD-spewing troll, vote Mitt!

MJBrutus on June 25, 2012 at 5:34 PM

And if your tired of far-right police-staters like MJBrutas, who want to expand the war on drugs and war on terror, turning your grandchildren into slaves to their debt and police-state, vote for Gary Johnson.

FloatingRock on June 25, 2012 at 5:39 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

You are right. They are not in any way related.

The issue seems to be how much politics will play a role in the voting of Roberts. And people are trying to read the tea leaves. I find the notion that Roberts’ vote might be cast for political reasons deeply disturbing.

I hope Roberts votes based on what he thinks is right or wrong about the law. If Roberts upholds a Congressional mandate requiring citizens to enter into a contract with a private enterprise his name will be mud forever in US conservative and libertarian circles, and rightly so. He will have earned that ignominious distinction.

Which is why I suspect that at a minimum the mandate is going down.

farsighted on June 25, 2012 at 5:39 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.

If, as some have suggested, CJ Roberts is anxious to have the SCOTUS appear to be objective and not too overtly political, that would make sense in a way.

If Roberts thought the AZ case was a close call on the merits, he could have decided to side with the libs and give them the majority in that case so that a subsequent ruling overturning Obamacare would look more even-handed to the public.

(I still think he’s dead wrong in the AZ case).

AZCoyote on June 25, 2012 at 5:40 PM

Grumpiness might be due to the AZ decision.

crosspatch on June 25, 2012 at 5:40 PM

I said it earlier today, maybe this is my cynical nature, but I’m scared about Thursday.

Mainly because so many right-leaning pundits (and commenters here and elsewhere) are SO SURE that Obamacare is going to go down, in whole or in part, that I can just see this whole deck of cards falling down upon our heads.

I absolutely loathe hyperbole, but honestly, as a libertarian (big L liberatarian, not the fake sort that so many in the tea part represent), if the mandate is upheld I fear our republic is doomed.

Vyce on June 25, 2012 at 5:41 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.

if this were true, that the Court is swapping and bargaining on unrelated cases (save the litigants) then that would be as bad as having empathy as a radically new legitimate main criterion for a decision.

I don’t even know what to say about this possibility except that if it occurs that unrelated cases get used as bargaining chips against each other then this Court is absolutely useless. I have to hope that this is nothing but fantasy that people outside of the Court engage in, as with the idea of a Justice switching sides to give some sort of different impression about a ruling.

I don’t know. The SCOTUS makes me sick to my stomach. And Barky’s finger in their eye directly after that pathetic ruling on Arizona shows how totally out of touch they are with what we are facing in America, let alone their clear detachment from the Constitution, itself.

ThePrimordialOrderedPair on June 25, 2012 at 5:41 PM

I just recall how all the Lib Justices kept trying to help the Obamacare defense by saying “Don’t you really mean this or that…” Yeah, way to help the lawyer who cannot make the argument for the bill!

g2825m on June 25, 2012 at 5:42 PM

if this were true, that the Court is swapping and bargaining on unrelated cases (save the litigants) then that would be as bad as having empathy as a radically new legitimate main criterion for a decision.

I agree with this. I hope it’s not the case.

Missy on June 25, 2012 at 5:42 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

I think Scalia has been working his charms on her. There’s a lot more substance to Sotomayor than to that petty party hack Kagan. She may prove to be a very interesting Justice, ironically the left’s version of David Souter.

Mr. Arkadin on June 25, 2012 at 5:30 PM

You say “Souter”, I say, “O’Conner”… :)

Bizarro No. 1 on June 25, 2012 at 5:43 PM

I just looked at the Arizona Immigration ruling by SCOTUS and saw that Roberts voted with the liberals. Scalia, Alito, and Thomas dissented. Kagen recused herself.

timberline on June 25, 2012 at 5:44 PM

I’m so very confused by the posters on this site. How is the Arizona ruling not a victory? Jan claimed victory and the Democrats of Arizona claimed defeat. The most important part of the bill was upheld. I’ll probably get tarred and feathered as a RINO, but I thought the court made exactly the right ruling.
mboyle1988 on June 25, 2012 at 5:37 PM

I mostly agree.

I expected illegal immigration as a state crime and probable cause arrest to be struck down, as they’re very clearly pre-emption. The states can’t enforce parts of the federal law the federal government doesn’t want them to enforce. Alito agrees with the majority here and so do I.

The reasonable suspicion provision allows state authorities to aid the Federal government. It supports the law rather than preempting it.

I have my doubts about the work solicitation part. I don’t have a clear idea on that.

joana on June 25, 2012 at 5:45 PM

oops I just noticed, O’Conneor

Bizarro No. 1 on June 25, 2012 at 5:46 PM

Ginsburg said at a public forum that one of the issues the court “must decide” in the Obamacare case is the issue of severability.

Suggests to me that one or more of them are hinging their vote on the mandate on if the whole thing gets tossed or not.

I do think Sotomayor could vote against the mandate. She’s in now and probably wants to held in higher regard than a simple Obama plant.

MechanicalBill on June 25, 2012 at 5:48 PM

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

So, if upheld, the difference would be that Romney implemented a popular (? I don’t know that this is true), and perfectly legal big government, statist program on the state level that Romney said should be used as a model for the nation. And Obama implemented a less popular, and equally legal big government, statist program on the national level? But I’m to believe that one is a communist and the other is a champion of the free market? I’m thinking that I must have missed something somewhere.

Romney (and, more importantly, all of us) had better pray that ObamaCare goes down in flames on Thursday.

besser tot als rot on June 25, 2012 at 5:26 PM

I’m not a lawyer, but I’m not aware of anything in the Massachusetts constitution that would limit the power of the state from making you purchase insurance. If that’s correct, then what Romney did is legal. Again, I’m sorry we have Romney. I believe he is a progressive, as he claimed to be while he was a Massachusetts politician. But Romney didn’t do anything illegal. Obama. on the other hand, has been doing many illegal things: Obamacare, Fast & Furious, non-enforcement of immigration laws, etc.

Gladtobehere on June 25, 2012 at 5:48 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.

if this were true, that the Court is swapping and bargaining on unrelated cases (save the litigants) then that would be as bad as having empathy as a radically new legitimate main criterion for a decision.

I don’t even know what to say about this possibility except that if it occurs that unrelated cases get used as bargaining chips against each other then this Court is absolutely useless. I have to hope that this is nothing but fantasy that people outside of the Court engage in, as with the idea of a Justice switching sides to give some sort of different impression about a ruling.

I don’t know. The SCOTUS makes me sick to my stomach. And Barky’s finger in their eye directly after that pathetic ruling on Arizona shows how totally out of touch they are with what we are facing in America, let alone their clear detachment from the Constitution, itself.

ThePrimordialOrderedPair on June 25, 2012 at 5:41 PM

Our Supreme Court makes me wonder….is the constitution that
complicated? Not!!!

They try and make it appear that way so the unwashed masses will
revel in the superiority of their intellect, hanging on to every
word. Poppycock!!!

Amjean on June 25, 2012 at 5:48 PM

I’m so very confused by the posters on this site. How is the Arizona ruling not a victory? Jan claimed victory and the Democrats of Arizona claimed defeat. The most important part of the bill was upheld. I’ll probably get tarred and feathered as a RINO, but I thought the court made exactly the right ruling.
mboyle1988 on June 25, 2012 at 5:37 PM

The ruling says the police can ask for papers, but they cannot require that people have papers. The police can do nothing even if they want to. So it is a toothless victory.

pedestrian on June 25, 2012 at 5:49 PM

Where have we come as a country where we cannot ask AND enforce if a person is here illegally? I mean I have to show ID EVERY where I go and enter into at work or to cash a check or buy groceries. And on top of this…Obamacare if it stands, in whole or part, basically the gov’t is telling us how to run our lives in regards to our health…which Michelle Obama is already in front of this train! The Broccoli rule.

g2825m on June 25, 2012 at 5:50 PM

If people like you had your way, Dukakis would have beaten Bush 41 in 88 and instead of Clarence Thomas we would have some Ginsburg clone – and we wouldn’t even have this discussion because the Court would quickly uphold Obamacare and affirm the constitutionality of federal government mandates.

joana on June 25, 2012 at 5:27 PM

Right. Because other than the difference between Thomas not being nominated, nothing else over the last 24 years would have changed at all. So all subsequent justices nominate, presidents/congresses elected, and policy enacted would have been exactly the same.

besser tot als rot on June 25, 2012 at 5:34 PM

Dukakis never even came close to winning. He lost 40 states, including the states of Pennsylvania, Ohio, and he even lost Illinois.

Heck, Dukakis even lost California that year. The Dems must have been so proud of him.

As a former MA resident who lived thru part of his Governship, I can assure you the dude was (and still is) a hack.

Del Dolemonte on June 25, 2012 at 5:50 PM

I think the idea is that the decision is really in Kennedy’s hands and Roberts will join Kennedy either way. Roberts would be naturally sympathetic to striking down the law, but if Kennedy decides to uphold it, Roberts would join in so that he could be the one writing the decision and framing it so that the mandate could not then be used for broccoli mandates or whatever. That’s the idea, anyway. If that’s true, I can respect what Roberts would be trying to do in limiting the damage, but I personally doubt Roberts would sign onto the mandate. I’m not fully confident of that, though.

NukeRidingCowboy on June 25, 2012 at 5:51 PM

Rixon, in the past fifty or so years, the only justice picked by a Democrat who ended up disappointing his party was Byron White. The modern Left knows what it is doing when it comes to SCOTUS picks.

McDuck on June 25, 2012 at 5:37 PM

Fun fact: Byron White was the Navy JAG who presided over a hearing of a young Lt. John F. Kennedy for dereliction of duty during the PT 109 incident. Kennedy was found not guilty, became a (fraudulent) hero and then when he was POTUS, Kennedy nominated White for SCOTUS.

Amazing, ain’t it (wretch)?

Rixon on June 25, 2012 at 5:51 PM

Given his vote on the Arizona immigration law, its not easy to be optimistic.

Speakup on June 25, 2012 at 5:52 PM

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

Roberts has already stated he isn’t one to worry about the politicization outside his realm of control.

In fact his exact words were:

I think anybody can criticize the Supreme Court without any qualms. We do it enough in our dissents, right? So, I think people should feel perfectly free to criticize what we do. Some people, I think, have an obligation to criticize what we do, given their office – if they think we’ve done something wrong. So I have no problems with that.

Roberts is going to vote and do what he feels is constitutional. He’s not going to care about the perception.

ButterflyDragon on June 25, 2012 at 5:54 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

Maybe it’s Clarence Thomas’s wife

Conservative4ev on June 25, 2012 at 5:54 PM

Amjean on June 25, 2012 at 5:48 PM

I have no faith in the SCOTUS. None. We might get lucky on a few rulings but they clearly aren’t limited by our Constitution. It’s totally hit or miss with those jokers. We might get lucky on the monstrosity and Constitutionally offensive ObamaCare (the mandate’s definitely NOT a tax … the mandate is definitely a tax …) but it will be only by luck.

I think public faith in all of our federal institutions is about spent – and I mean faith by the lawful who would be bound by those institutions and their actions, not the tyrannical lefties who want to dictate exactly what I can put on my own dining room table and have never seen a non-defense expansion of power into our personal lives that they haven’t loved.

I don’t think America carries on too much longer like this.

ThePrimordialOrderedPair on June 25, 2012 at 5:54 PM

To Timberline, who said Roberts didn’t dissent, even the “conservative” block only objected to one of the three provisions that were struck down. No one voted to uphold the whole thing. It was unequivocally unconstitutional. I would argue that what the Obama administration is doing is unconstitutional, as it does not protect Arizona from foreign invasion, but we don’t break the constitution in one way because it has been broken in another.

mboyle1988 on June 25, 2012 at 5:54 PM

Given his vote on the Arizona immigration law, its not easy to be optimistic.

Speakup on June 25, 2012 at 5:52 PM

Sheriff Joe will still “roll ‘em up” just to piss off Nappy and the Obama Administration.

g2825m on June 25, 2012 at 5:55 PM

Bizarro No. 1 on June 25, 2012 at 5:43 PM

I caught your post after I wrote mine. Looks like great minds think alike. :-)

Mr. Arkadin on June 25, 2012 at 5:56 PM

I’m not a lawyer, but I’m not aware of anything in the Massachusetts constitution that would limit the power of the state from making you purchase insurance.

Gladtobehere on June 25, 2012 at 5:48 PM

But why in the heck would anybody in their right mind want to give more power and authority to the bastage that committed such an offense against the spirit of the Constitution, even if the Constitution doesn’t technically apply to the state level? Such a person should be thrown out of office, and in fact Romney was so unpopular that he didn’t even bother to run for a second term. (Unlike Gary Johnson who was a popular, successful two term governor.)

Romney shouldn’t be promoted, he should be laughed out of town. In fact nobody wanted him to be the nominee, it’s just that the opposition was too divided. Rush Limbaugh himself implied that it was a conspiracy, that the GOP establishment stacked the deck with a bunch of narrow spectrum conservatives that don’t have broad appeal in order to split the conservative majority.

FloatingRock on June 25, 2012 at 5:56 PM

I’m nervous…

d1carter on June 25, 2012 at 4:51 PM

Don’t be. It either falls our way or we redouble all efforts. The court will decide for now.

Bmore on June 25, 2012 at 5:58 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

Maybe it’s Clarence Thomas’s wife

Conservative4ev on June 25, 2012 at 5:54 PM

It does make sense to reaffirm in liberals’ minds the benefits of striking down laws as unconstitutional, because on Thursday they are going to be calling for the abolition of the SCOTUS as a relic like the Electoral College.

pedestrian on June 25, 2012 at 5:59 PM

Mr. Floating Rock. Meet Mr. Deep End.

hawkdriver on June 25, 2012 at 5:59 PM

FloatingRock on June 25, 2012 at 5:56 PM

Isn’t this about 2 months too late?

Romney is the nominee and is showing with his ads, team, money support what I have been promoting about him for over a year. I knew he would not back down to Obama. Let’s get behind him 100%. He is our nominee and also has said he will repeal and replace despite what the ruling is…

g2825m on June 25, 2012 at 5:59 PM

They try and make it appear that way so the unwashed masses will
revel in the superiority of their intellect, hanging on to every
word. Poppycock!!!

Amjean on June 25, 2012 at 5:48 PM

Reminds me of a column a read a few years a back about needing diversity of education background in the Supreme Court. Must all of our Justices attend Ivy League law schools? Is our Constitution so difficult to understand you need to attend Harvard Law to understand? I don’t think so. Yes, I want smart people with a background in law to interpret the law but Harvard and Yale by no means have a monopoly on smart lawyers.

terryannonline on June 25, 2012 at 6:01 PM

g2825m doing okay? In need of anything? The offer doesn’t have an expiration date. ; )

Bmore on June 25, 2012 at 6:02 PM

… It either falls our way or we redouble all efforts. The court will decide for now.

Bmore on June 25, 2012 at 5:58 PM

THIS.

It wasn’t over when the Germans bombed Pearl Bailey and it won’t be over if we lose this. It will be a disaster of titanic proportions, but over? Pfft!

Rixon on June 25, 2012 at 6:02 PM

Romney is the nominee

g2825m on June 25, 2012 at 5:59 PM

Gary Johnson 2012!

FloatingRock on June 25, 2012 at 6:02 PM

I’m gonna put my vote on the 0-9 uphold square.

I think the Justices learned their lesson with Citizens United and don’t want to be singled out for a SOTU Worst People in the World segment.

sgmstv on June 25, 2012 at 6:02 PM

Either 5-4 or a curveball 6-3 to strike it down.

The tip off for me was when Ginsberg stated a few weeks back that there was severe discontent among some of the justices. It was almost as if she was letting her liberal peeps know that, while the mandate fell, there were some on the left in the court who tried (albeit unsuccessfully) to keep it alive.

Almost as if she was saying, “Sorry libs, we tried.”

Eschelon on June 25, 2012 at 6:03 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.

That’s the sad part of all this (and most SC decisions) — why do justices like Ginsberg & Breyer generally vote “liberal” and Scalia & Thomas generally vote “conservative”? Aren’t they supposed to decide cases on their merits vis-a-vis the Constitution? If they did, wouldn’t there be far fewer 5-4 decisions? I know they have pre-programmed biases — that’s human nature. But gee whiz! These are Supreme Court Justices! Can’t they transcend politics and rule without those biases? (OK, just call me Pollyanna.)

KS Rex on June 25, 2012 at 6:03 PM

Mr. Floating Rock. Meet Mr. Deep End.

hawkdriver on June 25, 2012 at 5:59 PM

Are you still swimming in the shallow end of the pool? : )

FloatingRock on June 25, 2012 at 6:03 PM

However, when the mandate fails and the rest of the law is upheld, the issue of solvency rears its ugly head. No mandate, how are they to fund it? Raise taxes? Therefore, the mandate failing ill result in the majority of the law to fail.

I read where three large insurance carriers intend to keep parts of the law in practice no matter what.

the new aesthetic on June 25, 2012 at 6:04 PM

This may help determine an drift on Roberts’ part. It’s amazing that justices only drift from restraint to unrestraint.

John Kettlewell on June 25, 2012 at 6:07 PM

It wasn’t over when the Germans bombed Pearl Bailey

Rixon on June 25, 2012 at 6:02 PM

?!?

KS Rex on June 25, 2012 at 6:07 PM

6-3 law is completely struck down, IMO.

crazywater on June 25, 2012 at 6:09 PM

KS Rex Wouldn’t there be fewer 5-4 decisions?

There are very few 5-4 decisions. The SCOTUS rules on 20-30 cases per year. We only hear about 1-3 of them per year that are usually 5-4 decisions. “Liberal” means you believe the Constitution should be interpreted based on the meaning of its words in modernity. “Conservative” means you should interpret the words of the constitution based on the meaning of its words at the time it was written.

mboyle1988 on June 25, 2012 at 6:10 PM

But why in the heck would anybody in their right mind want to give more power and authority to the bastage that committed such an offense against the spirit of the Constitution, even if the Constitution doesn’t technically apply to the state level?

How can it be offending the spirit of the Constitution if it doesn’t apply to the state level? The spirit of the Constitution is that there are certain things states may do that the federal government cannot do and vice versa. The idea that states shouldn’t do something just because the federal government can’t do it goes against the spirit of the Constitution.

NukeRidingCowboy on June 25, 2012 at 6:11 PM

I’m not a lawyer, but I’m not aware of anything in the Massachusetts constitution that would limit the power of the state from making you purchase insurance.

Gladtobehere on June 25, 2012 at 5:48 PM

But why in the heck would anybody in their right mind want to give more power and authority to the bastage that committed such an offense against the spirit of the Constitution, even if the Constitution doesn’t technically apply to the state level? Such a person should be thrown out of office, and in fact Romney was so unpopular that he didn’t even bother to run for a second term. (Unlike Gary Johnson who was a popular, successful two term governor.)

Romney shouldn’t be promoted, he should be laughed out of town. In fact nobody wanted him to be the nominee, it’s just that the opposition was too divided. Rush Limbaugh himself implied that it was a conspiracy, that the GOP establishment stacked the deck with a bunch of narrow spectrum conservatives that don’t have broad appeal in order to split the conservative majority.

FloatingRock on June 25, 2012 at 5:56 PM

Do you ever bother reading what I write? This is the full statement of what I wrote below.

I’m not a lawyer, but I’m not aware of anything in the Massachusetts constitution that would limit the power of the state from making you purchase insurance. If that’s correct, then what Romney did is legal. Again, I’m sorry we have Romney. I believe he is a progressive, as he claimed to be while he was a Massachusetts politician. But Romney didn’t do anything illegal. Obama. on the other hand, has been doing many illegal things: Obamacare, Fast & Furious, non-enforcement of immigration laws, etc.

Gladtobehere on June 25, 2012 at 5:48 PM

I don’t want Romney, but I’m stuck with him. Obama is a criminal, Romney just a progressive. Romney is better than Obama. Those are my choices.

Gladtobehere on June 25, 2012 at 6:11 PM

I don’t expect Sotomayor to be a Democrat version of Souter or even O’Connor. Souter sided with the “other side” on almost every major constitutional issue and O’Connor was roughly 50/50. Nothing from Sotomayor so far suggests anything even close to that level of betraysal.

McDuck on June 25, 2012 at 6:11 PM

Are you still swimming in the shallow end of the pool? : )

FloatingRock on June 25, 2012 at 6:03 PM

You do have a sense of humor. (Come on, you know voting Romney is our best bet in turning back this liberal insurgency.) And you know for a fact that Johnson is even futher left than Mitt Romney.

hawkdriver on June 25, 2012 at 6:11 PM

mboyle1988 on June 25, 2012 at 6:10 PM

Good insights – thanks.

KS Rex on June 25, 2012 at 6:11 PM

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

FloatingRock on June 25, 2012 at 5:19 PM

Because pointless exercises in futility are good for your health?

6-3 Mandate unconstitutional. 5-4 whole bill must go.

If upheld, can it then be attacked because it was passed illegally? It was passed under reconciliation because it was falsely labelled as budget neutral when it will cost over a trillion bucks. Was the argument of insufficient vote to pass non budget neutral legislation part of this effort or can we try again if Obamacare is upheld?

talkingpoints on June 25, 2012 at 6:12 PM

Rixon on June 25, 2012 at 6:02 PM

?!?

KS Rex on June 25, 2012 at 6:07 PM

Forget it, he’s rolling.

hawkdriver on June 25, 2012 at 6:13 PM

Fashionable pessimism, so tiresome.

EMD on June 25, 2012 at 6:14 PM

“Liberal” means you believe the Constitution should be interpreted based on the meaning of its words in modernity aura of the Constitution you see during a drug trip. “Conservative” means you should interpret the words of the constitution based on the meaning of its words at the time it was written.

mboyle1988 on June 25, 2012 at 6:10 PM

FIFY.

Gladtobehere on June 25, 2012 at 6:14 PM

If you oppose serious burn injuries as I do, please join me in sticking this fork into an electric socket.

Kensington on June 25, 2012 at 6:15 PM

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.

On Drudge right now:

“SCOTUS upholds ObamaCare!”

Bishop on June 25, 2012 at 9:23 AM

Buehler, Buehler, Bishop?

olddog58 on June 25, 2012 at 6:17 PM

g2825m doing okay? In need of anything? The offer doesn’t have an expiration date. ; )

Bmore on June 25, 2012 at 6:02 PM

Doing well out here! I have just been extremely busy since it is the “season” for these guys. I appreciate the offer.
You can send it here:
G Moyes
4th ID – 4BSTB – S2
FOB Mehtar Lam
APO AE 09310

I hope all is well with you and keeping the Hot Air flames burning. I pop in here every once in awhile when I get a break.

g2825m on June 25, 2012 at 6:18 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.

KingGold on June 25, 2012 at 4:57 PM

..quite apart from the knowledgeable debate on this thread, that is a pair of troubling metaphors — and so close to the dinner hour too.

The War Planner on June 25, 2012 at 6:19 PM

Rixon, in the past fifty or so years, the only justice picked by a Democrat who ended up disappointing his party was Byron White. The modern Left knows what it is doing when it comes to SCOTUS picks.

McDuck on June 25, 2012 at 5:37 PM

I am torn. Given the tenure of Supreme Court justices, I rather hope that they become a little independent of party lines. They seem more judicious when they do. Admittedly, Souter disappointed me by going too squishy.

On the other hand, I could live with a Supreme Court in which Clarence Thomas had the only vote.

thuja on June 25, 2012 at 6:19 PM

…sitting on pins and needles!

KOOLAID2 on June 25, 2012 at 6:20 PM

I hope all is well with you and keeping the Hot Air flames burning. I pop in here every once in awhile when I get a break.

g2825m on June 25, 2012 at 6:18 PM

..what — specifically — would you need/want?

The War Planner on June 25, 2012 at 6:21 PM

But why in the heck would anybody in their right mind want to give more power and authority to the bastage that committed such an offense against the spirit of the Constitution, even if the Constitution doesn’t technically apply to the state level? (Unlike Gary Johnson (…)

FloatingRock on June 25, 2012 at 5:56 PM

What is Gary Johnson’s position on abortion?

joana on June 25, 2012 at 6:21 PM

g2825m

, got it, any special needs?

Bmore on June 25, 2012 at 6:21 PM

g2825m, sorry about that sloppy formatting. ; ) Anything in particular just list it.

Bmore on June 25, 2012 at 6:23 PM

..what — specifically — would you need/want?

The War Planner on June 25, 2012 at 6:21 PM

War…goodies are always appreciated from nuts, licorice, candy (any), travel size shampoos/conditioners, sunflower seeds, coffee (I do not drink it but many people over I live with do), the little Crystal lite drink mixes to pour into our water bottles, magazines-hunting, gun, golf, etc…really anything is greatly appreciated.

g2825m on June 25, 2012 at 6:24 PM

g2825m, sorry about that sloppy formatting. ; ) Anything in particular just list it.

Bmore on June 25, 2012 at 6:23 PM

Oh, alot of guys like those CLIF bars or those Nature type granola bars on patrols, etc…

This is why Hot Air is a great site because of the crowd here! Thanks in advance from all of us!

now back to discussing the Obamacare ruling :o)

g2825m on June 25, 2012 at 6:27 PM

Don’t get your hopes up. There will be no easy out here. The reckoning with and repeal of Obamacare is going to have to come the hard way, through Congress.

rrpjr on June 25, 2012 at 6:28 PM

g2825m, consider it done. Keep your head down and stay safe. Your disagreeable friend.
; )

Bmore on June 25, 2012 at 6:30 PM

g2825m on June 25, 2012 at 6:27 PM

G Moyes
4th ID – 4BSTB – S2
FOB Mehtar Lam
APO AE 09310

sorry. never done this before. put above mentioned goodies in box. copy and paste above local post office. take to local post office.

that about right?

renalin on June 25, 2012 at 6:33 PM

Scotusblog today had:

Tom:
From the opinion authorship, health care is almost certainly being written by CJ Roberts, perhaps in part with Justice Kennedy.

With that in mind, I didn’t see in your article a mention of a possible JOINT authorship. If there is a join authorship, is such a thing highly improbable, unlikely, impossible, or unique? And if such a thing happened, what would be your prediction then? Would you stick with the 5-4 overturn or 6-3 stand?

PackerFan4Life on June 25, 2012 at 6:34 PM

Ever have a time when you proof something and it STILL has a typo in it? Grrrr… “If there is a JOINT authorship”… LOL.

PackerFan4Life on June 25, 2012 at 6:35 PM

renalin on June 25, 2012 at 6:33 PM
Bmore on June 25, 2012 at 6:30 PM

Renalin, correct and thank you!

Bmore, thank you as well. It is about 310am over here so I am checking out but we appreciate ALL of your guy’s/gals support.

Good nite from the Beautiful Hindu Kush…except where the Taliban are hiding.

g2825m on June 25, 2012 at 6:39 PM

renalin
This or just swing by your local branch. Its easy and its fun! ; )

Bmore on June 25, 2012 at 6:41 PM

g2825m Good Night, Sleep Easy. ; )

Bmore on June 25, 2012 at 6:42 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.

I’m with you, but I’m sure their response is that it’s all because libs are “reality based” whereas conservatives are supposedly living in a fantasy land where people should be able to make their own health coverage decisions. In other words, this isn’t really new.

When have you ever heard about a semi controversial vote where any of the libs joined with the conservative justices?

Genuinely curious on that. It’s possible I’m being too selective with my memory on that last one.

Esthier on June 25, 2012 at 6:44 PM

I caught your post after I wrote mine. Looks like great minds think alike. :-)

Mr. Arkadin on June 25, 2012 at 5:56 PM

I figured you had – I was having some fun with the similiarity of our thoughts! :)

I don’t expect Sotomayor to be a Democrat version of Souter or even O’Connor. Souter sided with the “other side” on almost every major constitutional issue and O’Connor was roughly 50/50. Nothing from Sotomayor so far suggests anything even close to that level of betraysal.

McDuck on June 25, 2012 at 6:11 PM

When I was comparing the Wise Latina to O’Connor, I wasn’t doing so under the illusion that she’ll vote as a strict Constructionist much of the time – I only meant that I believe she is a wild card that the Left cannot completely count on the way they can with a knee-jerk Leftist Justice like Kagan, thus being a disappointment to them

Bizarro No. 1 on June 25, 2012 at 6:46 PM

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