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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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
AZCoyote on June 25, 2012 at 5:40 PM

The case was a sticky wicket.

Allowing AZ to only document illegal aliens, hands full power to the feds. If the feds refuse to prosecute the law, as Obama had already declared, then the feds can decriminalize any act by declaring it federally illegal

On the other hand, if Roberts had sided with AZ, we would have had immigration law correctly prosecuted for the first time in years, and that would have upset the elites of both parties, who have declared soveriegnity of States and Nation to be an impediment to their higer goals

Like Dred Scott, the case has set the stage for a greater national battle. Roberts joins the Bushes, the Perrys and Rubios who see the ends and care not about the means

Roberts is no Taney, but consider the reasoning of Taney in Dred scott

Dred Scott had no standing in the court system because blacks, regardless of whether they were free or slave, were not and could not be citizens.
A slave was the property of the slaveowner and that temporary residence north of the Missouri Compromise’s 36?30’ line did not bestow freedom.
Congress, under the Fifth Amendment, lacked the authority to deprive citizens of their property, a ruling that served to wipe out the slavery provisions of the Missouri Compromise.

-Scott had no standing and neither AZ
-Free States had no say over transient property of slave states
and AZ has no say over abuse that has been federalized
- AZ lacked authority to force the feds to act on any federal law

AZ is not a trivial case, it is the new Dred Scott and Roberts put his name on it. He gained the love of the establishment and a place in history I do not envy

entagor on June 25, 2012 at 6:48 PM

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

FloatingRock on June 25, 2012 at 5:19 PM

Fixed. Same thing.

CW on June 25, 2012 at 6:49 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

KS, go watch this, then accept the understanding that develops.

Difficultas_Est_Imperium on June 25, 2012 at 6:52 PM

Well, if Roberts is still writing, he’s got nothing on me in terms of procrastination.

PopsRacer on June 25, 2012 at 6:54 PM

Roberts chance to affect a legacy on the backs of generations of Americans.

6-3, ObamaCare upheld in totality.

PappyD61 on June 25, 2012 at 6:59 PM

Let’s be real guys. The 4 libs are voting for the mandate. Case closed. Breyer, Ginsburg and Kagan are hard core leftists. No way Sotomoyor bites her benefactor. That leaves the 4 conservatives and Kennedy. If this mandate is overturned the judges voting to do so will be vilified for decades by the press and DC elites. They will become persona non grata on the cocktail circuit. Obama’s insane clown posse (SEIU, OWS, ETC) will literally target these justices. Think OWS on steroids. Scalia and Thomas could care less but I can’t believe Kennedy and Alito want to put themselves through that and history will regard this court as Roberts’ court. Will he want to become a lightning rod for libs insane hatred??? If you think liberals constant whining about the 2000 decision to put Bush in the WH is bad wait until they have a mandate overturning to rant about. Overturning this mandate will take a lot of guts. I hope at least 5 justices have the guts to do it but I fear they won’t. I fear a 6-3 or 7-2 vote affirming the mandate with Roberts declaring that because of the “special” nature of healthcare, this is the only mandate the gov gets.

oWS

Talon29 on June 25, 2012 at 7:01 PM

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

That it must be a big f***ing deal?

NoLeftTurn on June 25, 2012 at 7:04 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?

talkingpoints on June 25, 2012 at 6:12 PM

No, because it’s the right thing to do.

FloatingRock on June 25, 2012 at 7:05 PM

What would happen if there was a non-decision? If they did not rule because the law had not been implemented yet?

Fallon on June 25, 2012 at 7:09 PM

6-3 or better and Obamacare goes down in flames.

Why?

1. If the mandate is legal, then anything is, and SCOTUS is irrelevant. Even if thecy don’t care about freedom, liberals care about power. They won’t vote their power away.

2. Obama’s state of the union 2010. Payback is a b!tch.

3. All the screeching and whining from democrats about SCOTUS. Obama’s mole in the court told him it doesn’t look good. They wouldn’t be demonizing Roberts et al if the ruling went their way.

bitsy on June 25, 2012 at 7:12 PM

There is one other options that people are not talking about that I think could be possible. The Supreme Court may go beyond blowing up ObamaCare and blow up one of the key fixtures of Commerce Clause jurisprudence: the Wickard case. It was the case that expanded the commerce clause to its limits until ObamaCare. In this case, a farmer grew wheat for self-consumption. When the farmer argued that his self-contained growth and usage could not be considered “interstate” commerce, the Supreme Court rejected his argument. The Supreme Court held that the farmer’s growth and consumption of wheat affected interstate commerce because his decision, in the aggregate with other self consumers, still affected the national demand for wheat. Thus, the farmer’s self consumption of wheat was still part of interstate commerece.

This case basically negated any real argument that there was a difference between interstate commerce and intrastate commerce.

It was this case that the Supreme Court relied upon when it found that the federal government could regulate (and prohibit) the self-growth and consumption of pot. Without this decision, the issue would be subject to state law and allow states to legal pot.

There is some thought that Obama’s overreach with ObamaCare has laid the ground for this Supreme Court to invalidate Wickard and set the reach of the federal government back by 100 years. It would be a real bomb. And it would make the fight over the next justices that more visceral and contested. It would, in essence, change everything with respect to the federal government.

And it would be a glorious victory for true Federalists and rank place Roberts in the Conservative phanteon forever.

RedSoxNation on June 25, 2012 at 7:13 PM

RedSoxNation on June 25, 2012 at 7:13 PM

We will party like there’s no tomorrow!

slickwillie2001 on June 25, 2012 at 7:19 PM

A 6-3 vote to uphold? Allah, what have you been drinking?

a known dangerous urinal on June 25, 2012 at 7:19 PM

6-3 (with a slim shot at 7-2)that the mandate goes but 5-4 the bill stays.
The two justices who will NEVER under any circumstances vote for anything remotely approaching reason are Ginsburg and Kagan.

MaiDee on June 25, 2012 at 7:20 PM

RedSoxNation on June 25, 2012 at 7:13 PM

I agree. I think there is a real possibility they nuke the commerce clause. They now have evidence of the government over reach that Wickard has led us to decades later.

bitsy on June 25, 2012 at 7:22 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

Why let his aggression out? this was not a “less important” case in Scalia’s mind. He’s angry about this vote and he’s angry about what’s coming as he would be in the losing side 2x. No wonder he went and read his dissent from the floor on this one. He knows what’s coming for Obamacare & it makes him sick.

athenadelphi on June 25, 2012 at 7:23 PM

Got a bad feeling on this- Scalia grumpy and I keep going back to Buzzy Ginsbergs little wink and a nod about people “not talking”- that old crone wouldn’t be in a good mood if her socialist utopia was going to be shot down.
Also-this “health” as an exception is just the sort of weak limb that Kennedy would love to grab.

jjshaka on June 25, 2012 at 7:24 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.

You must love a blogger that basically tells you that his post is full of baseless speculation, yet sucks you into reading the entire thing anyway. :)

blink on June 25, 2012 at 6:50 PM

Allahpundit is one of the best. His snark is irresistible.

:D

bitsy on June 25, 2012 at 7:24 PM

If Warner is writing it, it will be ironclad and faultless.

Compare him to BO’s picks; the difference in judicial capacity is alarming. There’s possible three picks in the next four years. Do you want more Warner, or more Sotomoto?

MarkT on June 25, 2012 at 7:25 PM

Watch this video. You will feel much better about our chances. Look at SCOTUS’s expressions. Obamacare is going down. “with all due respect to separation of powers….” BWAH HA HA HA. That line is going to bite Obama in the a$$.

bitsy on June 25, 2012 at 7:31 PM

What would happen if there was a non-decision? If they did not rule because the law had not been implemented yet?

Fallon on June 25, 2012 at 7:09 PM

If there was a recusal, we would have heard it already. So no 4-4. And if it were a tie, they would have done it today.

Let’s be real guys. The 4 libs are voting for the mandate. Case closed. Breyer, Ginsburg and Kagan are hard core leftists. No way Sotomoyor bites her benefactor.

Talon29 on June 25, 2012 at 7:01 PM

I think you are right. But I would not put Breyer at 100% lock.

AshleyTKing on June 25, 2012 at 7:34 PM

entagor on June 25, 2012 at 6:48 PM

I’m not a lawyer(just a boxhead) so I can’t comment on the 2cnd half of your post though it was interesting and well presented.

on the first part-
I never know whether it’s calculated cynicism ,in the way you describe, or misplaced but heartfelt “compassion” for the plight of the illegals. Maybe it’s both.

if Roberts had sided with AZ, we would have had immigration law correctly prosecuted for the first time in years, and that would have upset the elites of both parties, who have declared soveriegnity of States and Nation to be an impediment to their higer goals

BoxHead1 on June 25, 2012 at 7:36 PM

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

No, that’s not my take on it at all…Rush sounded cryptic on how he KNEW that was the way Roberts was going to vote on Arizona. Said he wanted to protect a ‘source’. That’s when he wanted to say more but stopped himself. So Rush knew that Roberts was going to vote this way on Arizona all along…………

As for Obamacare? Rush doesn’t know but now that we have Roberts on record as a squish for whatever reason on Arizona don’t tell me that everyone here isn’t worried that Roberts/Kennedy aren’t going to do some legal hoopla and strand us in the desert! This is why Scalia is so freaking ANGRY at the last 2 big cases. As soon as Scalia got done talking Big Sis pulled all federal resources from Arizona. So they’re now punishing Arizona for going according to the Supreme’s 8-0 law. Heck yes, these are related.

Roberts/Kennedy swing this way and that to make the ruling & withing hours the EMPIRE fills in with draconian punishments. These 2 have to slap this BABY to get its attention or it grows another head and starts making everyone miserable. That ruling better be everything out the window or we’re truly Arizona – a new state of Mexico.

athenadelphi on June 25, 2012 at 7:37 PM

If Ocare stands then the Tea party needs to kick into 5th gear. I’ll be out there.

BoxHead1 on June 25, 2012 at 7:37 PM

DrewM points out that the only justices who have not written opinions since may – while the others have written 2 – are Roberts and Ginsburg. If these two are responsible for majority and dissent then Obamacare goes down. The best tea leaves yet!

Valkyriepundit on June 25, 2012 at 7:38 PM

Ace is speculating? Ginsburg is writing the dissent? If Roberts is writing the opinion and Ginsburg is writing the dissent…

Maybe I need to read these posts again…

catmman on June 25, 2012 at 7:38 PM

AP, whatever they’re paying you, you’re underpaid. You do know how to combine speculation with the absence of news to gin up comments. Seriously, no sarcasm here, pure admiration– it’s masterly creativity and marketing, well done! :)

obladioblada on June 25, 2012 at 7:47 PM

DrewM points out that the only justices who have not written opinions since may – while the others have written 2 – are Roberts and Ginsburg. If these two are responsible for majority and dissent then Obamacare goes down. The best tea leaves yet!

Valkyriepundit on June 25, 2012 at 7:38 PM

Who would have thought that politico.com would provide the best news of the day for conservatives?

http://www.politico.com/news/stories/0612/77816_Page3.html

pedestrian on June 25, 2012 at 7:51 PM

6-3 (with a slim shot at 7-2)that the mandate goes. The two justices who will NEVER under any circumstances vote for anything remotely approaching reason are Ginsburg and Kagan.

MaiDee on June 25, 2012 at 7:20 PM

I agree. I think the only two for sure against it are Ginsberg and Kagan. Breyer was very troubled by the Medicaid expansion in oral argument. Sotomayor is a Catholic along with 5 other Justices. They know the litigation will never stop coming before them if they don’t kill it now and it may be on freedom of religion grounds. I think 5-4 the whole bill is struck. If Congress couldn’t be bothered to read it before they voted, why should the Justices be bothered to keep it parts Congress never read in the law?

txmomof6 on June 25, 2012 at 7:53 PM

Actually, albeit earlier I submitted my best guess, who can say for sure how a group of artificially elevated and self important ambulance chasers in black bathrobes will respond. They’re probably laughing at our discomfiture and hysterical speculation-having made up their minds months ago-and are enjoying their extended delay up to the last second-to increase the drama and the publicity.

I still think “we” will win if, for no other reason, than the obvious unconstitutionality of the mandate-even a couple of liberals might be concerned about their “legacy”and may concur with that–but if the news is bad-all can be undone in the upcoming election. Thus, if Obama-care survives it will be the American people’s fault not the “black bathrobes”.

MaiDee on June 25, 2012 at 7:55 PM

My predictions: the mandate is rather unpopular, so that goes. Most of the rest of it will stay, but the Justices will split several ways in deciding what is permissible and what is not. At least on paper, most of the law will remain.

Realistically, once the mandate is gone, the whole law will need to be overhauled, as many provisions depend on the mandate. Once that is gone, Congress will end up chucking the entire thing and starting over, freeing the court from subsequent litigation.

Also, the law is such a mess than it’s a recipe for litigation anyway.

Roxeanne de Luca on June 25, 2012 at 7:58 PM

As it pertains to this court ruling, I know I can always count on AP to give me my almost-daily dose of pessimism. Thursday can’t come soon enough..

Static21 on June 25, 2012 at 8:01 PM

BTW remember this case came before the Supreme Court from the 11th Circuit and Judge Vinson. Judge Vinson struck the entire bill. The 11th Circuit struck the individual mandate portion. Cases are still pending in other Circuits for different reasons. If SCOTUS strikes the whole thing, those cases go away as do other arguments against the law.

txmomof6 on June 25, 2012 at 8:01 PM

6-3 to strike down.

Roberts is not going to let the Chief Douche win one over the Chief Justice, especially after that spectacle Barackabama did at the State of the Union speech.

SouthernGent on June 25, 2012 at 8:02 PM

DrewM points out that the only justices who have not written opinions since may – while the others have written 2 – are Roberts and Ginsburg. If these two are responsible for majority and dissent then Obamacare goes down. The best tea leaves yet!

Valkyriepundit on June 25, 2012 at 7:38 PM

Dissents aren’t “assigned” the way opinions are, so the fact that Ginsburg hasn’t written a majority opinion since May doesn’t indicate she’s on the losing side of this case. In fact, that points the opposite way. My assumption is that the Chief writes the Anti-Injunction and individual mandate sections, and Ginsburg has the opinion for the Medicare expansion. 6-3 to uphold all. I’d expect almost every member of the Court to weigh in in some fashion though.

cjw79 on June 25, 2012 at 8:10 PM

It could be a punt until after the election, but for Christ sake if they can kill it now…KILL IT!

SouthernGent on June 25, 2012 at 8:11 PM

I think a lot maybe surprised. Its one thing to consider a mandate when it is based on business to business issues. Obamacare on the other hand represents the first large scale consumer based mandate. That represents a whole different kettle of fish to the Court and it might not be pretty for the liberals.

Dr. Dog on June 25, 2012 at 8:20 PM

I find myself wondering why Darrell Issa has set the Holder contempt vote for the same day as the 0bamacare decision.

Do you think he is doing this to let it get drowned out…. so that instead of the MSM crying “racist,” they will be busy attacking the Supreme Court?

I find myself torn. Part of me says let him keep it queit and keep squeezing Holder like a tube of toothpaste until a Kenyan comes out.

Part of me wants a big splash on the news so that it’s known far and wide that the A.G. is in disgrace.

Any thoughts?

cane_loader on June 25, 2012 at 8:26 PM

I think Allah has been overthinking this.

Why you so Eeyore, Allah?

a known dangerous urinal on June 25, 2012 at 8:27 PM

A Heritage Foundation attorney told me in a public forum in April that the Chief Justice would write the majority opinion, and that he would not need to outsource the decision to Kennedy to keep him on board.

I believe the mandate (and a few other provisions)will be struck 5-4 but the whole law will not be thrown out.

This is the reason for Scalia’s ill-humor: exactly analogous to when he chided O’Connor for not throwing out Roe v Wade in entirety.

The mandate is going down but Scalia wanted the whole thing vacated.

Politically, throwing out the mandate without the whole law is the best POLITICAL outcome for Romney.

matthew8787 on June 25, 2012 at 8:31 PM

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

FloatingRock on June 25, 2012 at 5:19 PM

Gary Johnson has ZERO, 0, ZERO, chance of winning. Obama gets re-elected & he appoints 1, 2 or 3 Liberal Supreme Court Justices.
You may not like Romney, but he’ll never appoint a Ruth Bader Ginsburg, who was appointed by Clinton.

This years election is between Romney and Obama. The Supreme Court is in play.

Time to start living in Realville.

redridinghood on June 25, 2012 at 8:34 PM

I dunno. Scalia is grumpy, often. I can’t go 3 days in depressive mode, so I’m going to say, it was a million degrees today, those black robes are super hot, and maybe he has hemorrhoids.

di butler on June 25, 2012 at 8:44 PM

I said months ago that I thought we’d see a 6-3 vote to uphold.

We don’t know for a fact that Roberts is writing the Obamacare decision. However, that said & with all due respect to AP, I cannot for the life of me fathom how anyone can believe that Roberts would sell out his core Constitutional beliefs and sign on to an opinion upholding the mandate for what basically amounts to “window-dressing.” Seriously, this kind of twisted-logic is beyond me. The Obamacare decision is going to be one of the biggest of the Roberts’ Court — Roberts isn’t going to throw out his years of judicial philosophy to make the Dems and/or Obama “happy” with some kind of ludicrous facade like this.

Dark Star on June 25, 2012 at 8:58 PM

On the other hand, if Roberts had sided with AZ, we would have had immigration law correctly prosecuted for the first time in years

entagor on June 25, 2012 at 6:48 PM

Nope – Arizona has never been empowered to deport people – the whole shebang depended, from the start on identifying illegals and then handing them over to INS for deporting. There is no way this administration is going to allow that kind of cooperation even if SCOTUS had found the law constitutional.

This was all kabooki.

HondaV65 on June 25, 2012 at 9:13 PM

Dark Star on June 25, 2012 at 8:58 PM | Delete | Delete and Ban

If Kennedy swings to the left on O-Care – it’s highly possible that Roberts would join the majority in order to write the opinion himself – and thereby minimize the damage of the decision.

It’s called “taking one for the team” and Roberts is exactly the kind of guy who would do it. I won’t fault him if he does because if Kennedy swings – the law is found constitutional no matter how Roberts votes.

HondaV65 on June 25, 2012 at 9:15 PM

Roberts is not going to let the Chief Douche win one over the Chief Justice, especially after that spectacle Barackabama did at the State of the Union speech.

SouthernGent on June 25, 2012 at 8:02 PM

LOL – this is NOT up to Roberts …

1. Kagan
2. Sotomeyer
3. Ginsburg
4. Breyer
5. Kennedy

^^That vote there guarantees the upholding of ObamaCare (if Kennedy swings left as he often does).

Given that situation – that a win is inevitable anyway – Roberts could then decide to join the majority in order to WRITE the opinion of the majority – which is his prerogative. In that opinion, he could blunt some of the negative impact of ObamaCare with the language he uses. Not much – but if he sees something he can do he may well join the majority to do it. He would have nothing to lose since the case would already be lost.

HondaV65 on June 25, 2012 at 9:22 PM

If Kennedy swings to the left on O-Care – it’s highly possible that Roberts would join the majority in order to write the opinion himself – and thereby minimize the damage of the decision.

It’s called “taking one for the team” and Roberts is exactly the kind of guy who would do it. I won’t fault him if he does because if Kennedy swings – the law is found constitutional no matter how Roberts votes.

HondaV65 on June 25, 2012 at 9:15 PM

I believe this is what will happen.

After the Arizona vote Roberts looks to be yet another of Bush’s many mistakes.

tetriskid on June 25, 2012 at 9:26 PM

athenadelphi on June 25, 2012 at 7:37 PM

Here is what Rush said..
“I had a lawyer, a powerful, influential lawyer tell me today, “Hey, Rush, don’t worry about this Arizona business. If you’re the Supreme Court and you’re gonna strike down Obamacare, you’d go ahead and protect Obama in a previous ruling so that you save the court’s image.” The theory being that they gave Obama most of what he wanted on Arizona ’cause they’re gonna skin him alive when it comes to health care.”

Conservalicious on June 25, 2012 at 10:06 PM

If Kennedy swings to the left on O-Care – it’s highly possible that Roberts would join the majority in order to write the opinion himself – and thereby minimize the damage of the decision.

It’s called “taking one for the team” and Roberts is exactly the kind of guy who would do it. I won’t fault him if he does because if Kennedy swings – the law is found constitutional no matter how Roberts votes.

HondaV65 on June 25, 2012 at 9:15 PM

I believe this is what will happen.

After the Arizona vote Roberts looks to be yet another of Bush’s many mistakes.

tetriskid on June 25, 2012 at 9:26 PM

Yea Reagan screwed us too with Kennedy, don’t forget that

Conservative4ev on June 25, 2012 at 10:19 PM

obladioblada, And if you want some fun take ob-la-di-bla-da.

Bmore on June 25, 2012 at 10:37 PM

obladioblada, oh and I agree.

Bmore on June 25, 2012 at 10:39 PM

Well, if it is upheld there are going to be two results. I’ve already spoken in the past that the Republic is done and the US probably (in that case, hopefully) splits into two entities. In the near term, given that nearly 70% of the US wants Ocare repealed, this will guarantee a Romney landslide and probably a clean sweep of Congressional democrats. I truly believe the voters will be so enormously PO’d that nothing else in the race will matter anymore.

… and you know what? That still wouldn’t make up for the fact that the Supreme Court will have shredded what was left of the Constitution.

AZfederalist on June 25, 2012 at 10:52 PM

My predictions: the mandate is rather unpopular, so that goes. Most of the rest of it will stay, but the Justices will split several ways in deciding what is permissible and what is not. At least on paper, most of the law will remain.

Realistically, once the mandate is gone, the whole law will need to be overhauled, as many provisions depend on the mandate. Once that is gone, Congress will end up chucking the entire thing and starting over, freeing the court from subsequent litigation.

Also, the law is such a mess than it’s a recipe for litigation anyway.

Roxeanne de Luca on June 25, 2012 at 7:58 PM

I would have to agree. The mandate is gone, but out of concern to politics (not unheard of in the past), most of Obamacare remains, despite the lack of severability. In a perfect world, it should be struck in its entirety, but (as in the past) the Court started letting FDR’s laws stand after he threatened to pack SCOTUS, the Roberts court is not going to want to be seen and portrayed as extreme by the Democrats. The Roberts court is still going to be vilified for standing for the Rule of Law.

Jurisprudence on June 25, 2012 at 10:57 PM

I pray that our highest court isn’t conducted like Survivor like the speculation is describing..

Lord of the Wings on June 25, 2012 at 11:17 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.)

Hogwash.

My prediction is the ruling will come down to: 7-1 for a total strikedown, with Justice Kagan recusing herself – and therefore save her skin – and Justice Ginsberg being the lone dissenter, which explains why she’s been acting happy because she can safely assume that with no Democrat contender, Obama is a shoe-in and therefore guaranteeing her retirement and subsequent liberal replacement.

Retirement is also Breyer’s plan to save his skin, he having issues with several aspects of the Obamacare – mainly because it is presumed too messy to in fact allow an ultimate passing of the Democrat’s dream socialist health care plan, what with all the obvious problems such as a): no Severability Clause, b): forced abortion plan funding against religious people’s belief – especially since it’s the Catholics that have been pushing for Universal Healthcare for so long, and, c): the individual mandate which goes way above and beyond what the Commerce Clause allows, or any pretense or precedent that has been set by the courts – therefore explaining Scalia’s “tea leaf” mention of just when the Commerce Clause was first violated.

Sotomayor’s main defense for striking it down will be her Catholic faith, what with all her fellow members suing for a religious right not to pay for abortion that should have obviously been accounted for in the bill.

Why would Sotomayor risk leaving a portion of Obamacare intact when doing so will cause an even worst, mind-wrenching, horrid racking of brain power and potential conflict-of-interest-ruling accusations – because of her own faith – when the Catholic’s lawsuits come to her court?

See, at this point what’s in it for the individual Justices’ best long term interest and reputation is really what’s at stake here. They know that this decision will live in infamy, and, their own skin in the long term game is what really matters here. The truth, or the Constitution, or the people’s partisan opinion be damned. Because why should these Justices care for anything other than their own opinion, since Congress not even reading the bill was a colossal failure!? And the Democrats’ own leader saying they have to pass it in order to know what’s in it!?

Occam’s Razor
Why should these Justices care about the failure of Congress….in the long term? They most certainly are not going to risk allowing 535 failed members of Congress to ruin their own long term future! It is best for them to all cut their losses in favor of Occam’s Razor, and therefore end this discussion with the most simplest approach that guarantee’s their highest available honor in the long run.
In January there will be a new Congress, and then in two (2) years there will be a different Congress, but these Justices will still have to live with their decisions. Hard ones, for sure, but with reasonable opinions resounded far and wide in ever so many ways they will work out their reasons as time goes on, but to belabor the atrocity that is Obamacare, by not striking it down in totality? Are you kidding?!

Scalia’s mention (the other day) of when the Commerce Clause “lost it’s meaning” is a poker face giveaway of just how atrocious Obamacare is within SCOTUS’s discussion, AND, this is huge: Scalia being so bold about State’s rights regarding their ruling of the Arizona immigration bill, is another poker face tell, in that, what he knows about the Obamacare atrocity, EMBOLDENED him, and shows that he was simply not afraid of any fallout, what with all the ruckus ensuing after Thursday – contrary to what pontif Ed Morrissey thinks.

As if Scalia cares what the little league writers and pontifs think.

Mcguyver on June 25, 2012 at 11:42 PM

Mcguyver on June 25, 2012 at 11:42 PM

Holy crap, you have put a lot of thought in this. I am not that confident as you, I believe what you’re saying is a pipe dream but I hope you are right. If you are right you will be legendary on Hot Air.

Conservative4ev on June 26, 2012 at 12:22 AM

contrary to what pontif Ed Morrissey thinks.

As if… Scalia cares what the little league writers and pontifs think.

Mcguyver on June 25, 2012 at 11:42 PM


+1

While I do not agree with your vote counts or your reasoning vis a vis RBG or the Justices legal vs political considerations, you do NAIL a number of key points – especially the last two.

PolAgnostic on June 26, 2012 at 1:02 AM

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.

You must love a blogger that basically tells you that his post is full of baseless speculation, yet sucks you into reading the entire thing anyway. :)

blink on June 25, 2012 at 6:50 PM

The fact that he gets away with it amazes me. And neither Ed nor the token women bloggers are much better. Their baseless speculation knows no bounds.

DevilsPrinciple on June 26, 2012 at 7:18 AM

Mcguyver on June 25, 2012 at 11:42 PM

Mcguyver, if you are correct w/ this, you will be my new hero!! I don’t think this count will happen, but I will be hoping and praying…

Static21 on June 26, 2012 at 7:58 AM

Mcguyver on June 25, 2012 at 11:42 PM

If SCOTUS was composed of 4 or more other Justices like Scalia, what you describe is exactly what would, not just should, happen. Because of the squishy legal moderation of Kennedy, I’m afraid politics at large is guiding the arguments and final outcome. I wouldn’t be surprised if votes are being traded behind the scenes right up until the decision of handed down.

Jurisprudence on June 26, 2012 at 8:45 AM

My prediction is the ruling will come down to: 7-1 for a total strikedown, with Justice Kagan recusing herself . . .

Mcguyver on June 25, 2012 at 11:42 PM

You wrote a very long piece. But I stopped reading after the first sentence when you said “with Justice Kagan recusing herself.” A judge will recuse herself before the case is argued, not after. Your ignorance on that points nullifies whatever else you might have to say about the Supreme Court.

Dextrous on June 26, 2012 at 8:56 AM

If SCOTUS rules 6-3 to uphold commie care as I believe they will, then does anyone really still believe the republic and our freedoms can be saved through the political process?

bgibbs1000 on June 26, 2012 at 8:59 AM

Sotomayor’s main defense for striking it down will be her Catholic faith, what with all her fellow members suing for a religious right not to pay for abortion that should have obviously been accounted for in the bill.

Why would Sotomayor risk leaving a portion of Obamacare intact when doing so will cause an even worst, mind-wrenching, horrid racking of brain power and potential conflict-of-interest-ruling accusations – because of her own faith – when the Catholic’s lawsuits come to her court?

Mcguyver

Sure. Nancy Pelosi is Catholic too. It means nothing.

stenwin77 on June 26, 2012 at 9:25 AM

RedSoxNation on June 25, 2012 at 7:13 PM

Some may say that you’re a dreamer….

dczombie on June 26, 2012 at 9:46 AM

No one has mentioned that the House of Representatives has already voted to repeal this entire law. If it came up for a vote today in both the House and the Senate, it would fail. I’m sure that will matter to Scalia, and perhaps to Roberts as well. The fact remains that this is an unpopular law and the only people the Supremes will really piss off if they throw it out are Barack Obama and Nancy Pelosi. So I think the “politics” of this case are overblown.

rockmom on June 26, 2012 at 10:03 AM

This is the reason for Scalia’s ill-humor: exactly analogous to when he chided O’Connor for not throwing out Roe v Wade in entirety.

The mandate is going down but Scalia wanted the whole thing vacated.

I still think this is where it’s going… I think that’s why Scalia wouldn’t be writing the decision, because it’d be lose/lose in terms of his presence…

“We’re voting out the mandate, but we should have thrown the whole thing out.” You’d then have a SC justice admitting “we can’t do what’s right, but we’ll minimize the damage”?

So the SCOTUS let Scalia vent on the “lesser” decision of SB1070. I still get the feeling it’ll be 6-3 with the mandate dying, with Sotomeyer jumping to the majority on throwing out the mandate.

DaSaintFan on June 26, 2012 at 10:49 AM

Sure. Nancy Pelosi is Catholic too. It means nothing.

stenwin77 on June 26, 2012 at 9:25 AM

Pelosi is an old hag who’s opinion either nobody cares about or for the liberals part, they take her for granted.
Sotomayor, a junior Judge, is an entirely different matter, note again what I said about the Catholic’s lawsuit headed for her court.

All the liberal justices will have to do in order to justify their striking it down, is blame the evil Republicans for leaving the obvious non-starters in the bill: individual mandate; forced abortion funding; and no Severability Clause.

How are the justices supposed to rule on the Severability Clause, when that was not the claim in the suit this go around, BUT it surely will be the very next thing they have to rule on, since that’s such an obviously glaring issue?

You see, all the liberal (and conservative) Justices will have to do in ever so many follow up talks, is to blame the failed unpopular Congress, for, in addition to NOT reading the bill, but also shove the blame where it belongs to: Congress, for screwing this bill up beyond possible sane legal wrangling and even further beyond popular support!

The Justices can blame Congress, the democrats can blame the eeeeevil Republicans and they go back to the health care bill drawing board with renewed vigor and energy to defeat those eeeevil Reublicans at the ballot box this fall…..and everybody will be happy!!

We conservatives tend to think in short term linear mindsets, whereas the Justices have to think in long term linear and non-linear strategy in this case of such gargantuan consequences.

Striking down the individual mandate only, still leaves a huge problem for the Catholics/religious lawsuit – including Sotomayor – and/or merely dividing up the vote 5-4, and/or merely chastising Congress for one or two of these two things, presents a huge problem because it would keep the doors open for the utterly gridlocked and incompetent, unpopular Congress to come up with more of the same insane, unread, bastardized bills, that would again be headed to their court before the ink is dry!

Even the liberal Justices want more long term respect than the political filth that is called the current Congress!

Also, striking down the entire bill would somewhat pacify the Tea Party and thereby give some relieve to the pressure and give the democrats a chance in the fall elections, something the liberal activist Justices obviously dare to think of in their long term strategy – this idea also being floated by some key Democrats activists.

There are many other interlocking issues at play here, but these are some key ones.

Mcguyver on June 26, 2012 at 11:28 AM

I have said for months that, shown by Toobin’s reaction to the oral arguments, no one in the media, in academia, or in gummint (W.House or Congress), took the challenge itself seriously.
Only when the dam broke during oral arguments did the libs, the press, the academics, and the gummint actually address the possibility that they were in trouble.
The same argument has been accepted for the 4 libs on the court – they will all stand together. No one has even questioned this at all in the MSM or academia or gummint. Echoes of future past? I have said for months that such assumptions are painful when they bite.
I still think Breyer was not convinced, and allowing the mandate would change gummint’s relationship with the citizenry to the point where the Court would be meaningless…Even libs aren’t stoopid enough to allow Congress such latitude.
I am expecting 6-3 or even 7-2 to strike down the mandate. If that happens, the media, the gummint and the academics’ legal wing would all stutter and collapse, kind of like Toobin, only worse.

DublOh7 on June 26, 2012 at 1:20 PM

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