ObamaCare: Was the conservative dissent on the mandate originally a majority opinion?

posted at 4:01 pm on June 28, 2012 by Allahpundit

There’s a fair reason to think so and a not-so-fair reason. First, the not-so-fair:

Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it?

Scroll down to page 138 of the justices’ opinions to see Ginsburg’s opinion described as a “dissent.” Minor problem with this theory: Her opinion was a dissent. She and the liberals lost on the Commerce Clause argument over the mandate, which is what the conservatives’ joint opinion was addressing when it referred to her view as dissenting. The terminology’s not inaccurate, just a little odd given that it was the conservative side that ultimately ate a big ol’ shinolaburger today.

Ed Whelan’s reason for thinking the conservative opinion was originally a majority opinion is more convincing:

The joint dissent issued by Justices Scalia, Kennedy, Thomas, and Alito certainly reads as though it were written to be the majority opinion. Among other things, the joint dissent’s discussion of the taxing power doesn’t respond to the Chief Justice’s opinion (indeed, I think it never even cites it). Rather, it addresses only the government’s argument. By contrast, the Chief’s opinion repeatedly takes issue with the joint dissent. This strongly suggests to me that the joint dissent was written first, as the proposed majority opinion, but failed to garner the fifth vote from the Chief…

One serious problem with the above theory is that it’s difficult to reconcile with the fact that the Chief would have assigned the majority opinion in the first place. An alternative theory is that the joint dissenters wrote their opinion as they did, after the Chief circulated his draft, in order to signal their deep dissatisfaction with his draft. I now lean towards this alternative theory.

I might have missed something but a quick skim through the conservative opinion has me thinking Whelan’s right: While they do address Ginsburg by name and answer her arguments directly, at no point do they address Roberts — even in the crucial section on the taxing power that ultimately upheld the mandate. (The opinion starts on page 127 in case you want to check our work.) Instead, their arguments are addressed to “the Government,” i.e. the DOJ and the Solicitor General. It strikes me as deeply odd that they wouldn’t tackle the chief head on when discussing the linchpin of the case given that it’s the main point of contention between him and them. And something else is strange too: The conservative opinion goes on to argue in methodical detail why the rest of the law shouldn’t be severable from the mandate. Quote:

The opinion now explains in Part V–C–1, infra, why the Act’s major provisions are not severable from the Mandate and Medicaid Expansion. It proceeds from the insurance regulations and taxes (C–1–a), to the reductions in reimbursements to hospitals and other Medicare reductions(C–1–b), the exchanges and their federal subsidies (C–1–c),and the employer responsibility assessment (C–1–d). Part V–C–2, infra, explains why the Act’s minor provisions also are not severable.

Major provisions of the Affordable Care Act—i.e., the insurance regulations and taxes, the reductions in federal reimbursements to hospitals and other Medicare spending reductions, the exchanges and their federal subsidies, and the employer responsibility assessment—cannot remain once the Individual Mandate and Medicaid Expansion are invalid.

Why would they bother with an intricate analysis of which provisions were severable from the mandate if this opinion was written in the knowledge that the mandate was ultimately being upheld? You only need step-by-step instructions on severability if you’re in the majority and obliged to provide lower courts with guidance on which parts of the statute are still operative and which aren’t. If you’re writing in dissent, that’s a waste of time. Which makes me think … maybe when this was written the author wasn’t in dissent.

So what happened here? Could be that this was written by the four conservative justices as a bizarro-world majority opinion as a sort of middle finger to Roberts on how things should have gone. But in that case, why didn’t they add language attacking his opinion on Congress’s taxing power specifically? It makes more sense to think this was the majority opinion at some point — perhaps written by Roberts himself (since he likely assigned the opinion to himself from the beginning) and then discarded after he switched his vote. The other conservatives then salvaged his opinion, polished it up a bit, and republished it as their own, possibly as a tacit rebuke to Roberts or possibly because Roberts switched so late in the game that there wasn’t time to draft something new from scratch. Or, as yet another alternative, maybe Roberts was on the fence all along, which spurred the conservative bloc and the liberal bloc to each write their own “majority” opinions in hopes of persuading him to join them as the fifth vote. When the conservative bloc ended up being disappointed, they left their opinion more or less as is, whether due to time constraints or pique or both.

Any other theories? I don’t buy the idea that Roberts flipped at the last minute because of all the liberal hacks screeching at him on MSNBC and in the New Republic. That was always a fait accompli. If he was going to vote to uphold for that reason, he would have been a solid yes from day one and the conservative opinion here would have looked very different. Exit quotation from Romney’s website: “As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.”


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I’m sorry but these conspiracy theories about Roberts helping us or doing it to get Romney in are just plain nuts.

Blake on June 28, 2012 at 5:20 PM

Brilliant.

FlatFoot on June 28, 2012 at 5:17 PM

Try again – nobody reads that sh** in the opinions.

If he was “brilliant” – he’d have made this a conservative victory.

Quit rationalizing GOP incompetence.

HondaV65 on June 28, 2012 at 5:20 PM

Okay, if we can mandate individual behavior just because we call the fines taxes, how about a federal gun ownership mandate?

Valkyriepundit on June 28, 2012 at 5:21 PM

FlatFoot on June 28, 2012 at 5:17 PM

Genius? No he’s not, and that spin isn’t fresh, it’s pretty stale.

Dr Evil on June 28, 2012 at 5:21 PM

I’m sorry but these conspiracy theories about Roberts helping us or doing it to get Romney in are just plain nuts.

Blake on June 28, 2012 at 5:20 PM

It’s what Conservative Slaves do in order to rationalize voting for the only other man in the nation who has a socialist healthcare system named after him besides Obama.

They’ve got to do something dude! LOL

HondaV65 on June 28, 2012 at 5:22 PM

Okay, if we can mandate individual behavior just because we call the fines taxes, how about a federal gun ownership mandate?

Valkyriepundit on June 28, 2012 at 5:21 PM

Swalker beat you to it.

Schadenfreude on June 28, 2012 at 5:22 PM

LevinFan on June 28, 2012 at 5:19 PM

Just ignore him. I think he faps to his own posts. Better to leave him be instead exposing ourselves to that.

NotCoach on June 28, 2012 at 5:22 PM

Okay, if we can mandate individual behavior just because we call the fines taxes, how about a federal gun ownership mandate?

Valkyriepundit on June 28, 2012 at 5:21 PM

LOL – GOP wouldn’t pass it – they’re TOO liberal!

LMFAO!!

HondaV65 on June 28, 2012 at 5:23 PM

OMG YOU REMOVED MY … MY … “STANDING”???

BWHAHAHAHAHAHAHA!

You so silly.

HondaV65 on June 28, 2012 at 5:15 PM

No you have managed that all by your little lonesome. Are you really this daft?

Bmore on June 28, 2012 at 5:23 PM

Having had time to digest all of this, here is what I think happened.

I think Roberts chickened out. I think there was a majority to kill the mandate, the medicaid extortion, and the entire law. But I think the vote for each of the above was 5-4. I think Roberts pooped his diaper and scared himself into creating the mess we have now because he was terrified of such a massive repudiation of Congress and the President with only 5-4 votes.

Roberts blinked and turned this entire ruling into a gibbering mess as a result.

NotCoach on June 28, 2012 at 3:45 PM

Roberts is like those losers who voted for Maobma b/c of “white guilt”.

He’s spineless and forever tarnished his legacy.

I hate him more than Maobama!!

LevinFan on June 28, 2012 at 5:23 PM

So to all the GOP supporters. What evidence do you have that for some reason things will be different with moderate Romney?

How can you have honestly believe that after everything you have lost to the libs due to GOP sedition so to speak?

ClassicCon on June 28, 2012 at 5:24 PM

No you have managed that all by your little lonesome. Are you really this daft?

Bmore on June 28, 2012 at 5:23 PM

Are you really so friggin stupid as to think anyone has a “standing” around here?

You’re so cute – so official – like this all means something.

LOL!

HondaV65 on June 28, 2012 at 5:24 PM

So to all the GOP supporters. What evidence do you have that for some reason things will be different with moderate Romney?

How can you have honestly believe that after everything you have lost to the libs due to GOP sedition so to speak?

ClassicCon on June 28, 2012 at 5:24 PM

So what do we do, surrender? Or do we get mad as hell and demand our elected representatives serve us?

NotCoach on June 28, 2012 at 5:25 PM

So to all the GOP supporters. What evidence do you have that for some reason things will be different with moderate Romney?

ClassicCon on June 28, 2012 at 5:24 PM

THEY’VE GOT … HIGH HOPES!

THEY GOT … HIGH HOPES!

THEY GOT … HIGH APPLE PIE IN THE …

SKYYYYYYY OPES!

HondaV65 on June 28, 2012 at 5:26 PM

I don’t understand all the mental gymnastics being presented to rationalize Robert’s decision as being wise. He could have just voted it down. Simple as that! He didn’t.

silvernana on June 28, 2012 at 5:26 PM

The dread pirate roberts:)

rubberneck on June 28, 2012 at 5:15 PM

That’s the best laugh I’ve had all day, thanks.

toby11 on June 28, 2012 at 5:27 PM

I never counted on them tossing the mandate, even though that was the right thing to do.

Here’s my take on everything:

(1) This won’t make more people vote for Romney; it will make fewer people vote for Romney. “Well, the Supreme Court said Obama was right all along,” they’ll think to themselves, “which means Romney is wrong. So I guess I’ll vote for Obama.

(2) This is the turning point for freedom. As in, we don’t have it anymore. I’m generally not an Eeyore. But I’m pretty much also giving up.

Alana on June 28, 2012 at 5:27 PM

HondaV65 on June 28, 2012 at 5:23 PM

Man! Why don’t you go back to that Crochety Old Fart’s blog that you must blog at.

Vince on June 28, 2012 at 5:27 PM

So what do we do, surrender? Or do we get mad as hell and demand our elected representatives serve us?

NotCoach on June 28, 2012 at 5:25 PM

No just keep electing the same guys who helped Obama spend this nation into oblivion – same guys who appointed Kennedy and Roberts.

That tactic has worked so well for us – why quit now?! :P

HondaV65 on June 28, 2012 at 5:28 PM

LOL!

HondaV65 on June 28, 2012 at 5:24 PM

If it means nothing, why do you do it?

Bmore on June 28, 2012 at 5:28 PM

I’m sorry but these conspiracy theories about Roberts helping us or doing it to get Romney in are just plain nuts.

Blake on June 28, 2012 at 5:20 PM

Fluffers gonna Fluff LOL!

This decision handed down by a Bush appointee is about as rank as it get’s. The fluffers have been sent out to try, and change the narrative in the threads, you don’t want the Chief Justice to be upset do you? Reading what traitor he is to the United States Constitution. That’s how it’s going to go down in the history books. Judicial activism hit’s the high water mark on upholding ACA, by the Chief Justice himself, the morning of 28 June 2012.

Dr Evil on June 28, 2012 at 5:28 PM

Man! Why don’t you go back to that Crochety Old Fart’s blog that you must blog at.

Vince on June 28, 2012 at 5:27 PM

Uhm …no? LOL!!

HondaV65 on June 28, 2012 at 5:28 PM

If it means nothing, why do you do it?

Bmore on June 28, 2012 at 5:28 PM

Look man – me going away isn’t going to change the fact that you’re supporting a bunch of losers and they’re playing you for fools.

You’ll thank me one day – trust me. ;)

This is all for your own good. :D

HondaV65 on June 28, 2012 at 5:30 PM

Maybe I just don’t *get* it.

The WH argued OCare was legal based on 3 criteria:
1) Commerce Clause (REJECTED by SCOTUS)
2) Proper and Necessary Clause (REJECTED by SCOTUS)
3) Congress may TAX (ACCEPTED by SCOTUS)

EXCEPT THAT…
IN ORDER FOR A TAX TO BE LEGITIMATE, CONGRESS MUST INITIATE IT IN THE *H*O*U*S*E*….oops. THIS originated in the Senate.

SO, not only is SCOTUS an ACCOMPLICE in this travesty, but
the only so-called justifiable legitimacy of this law IS ILLEGITIMATE!

Czar of Defenestration on June 28, 2012 at 5:32 PM

FlatFoot on June 28, 2012 at 5:17 PM

That is f#@king retarded.

ThePrimordialOrderedPair on June 28, 2012 at 5:32 PM

Uhm …no? LOL!!

HondaV65 on June 28, 2012 at 5:28 PM

Yeah, I see where your site has been taken down. No wonder. Your personality doesn’t exactly draw crowds.

Vince on June 28, 2012 at 5:33 PM

Honda wanna cracker?

CW on June 28, 2012 at 5:33 PM

The contraceptive mandate is more rooted in prior judicial rulings (EEOC Rulings & Federal Courts), however, and it has survived several legal challenges. It actually predates the ACA and Obama. I think that outside of employers who are all of the same faith (who aren’t impacted anyway), this too will stand.

lexhamfox on June 28, 2012 at 4:50 PM

No, the contraceptive mandate’s enabling statute was ACA. And there is the Religious Freedom Restoration Act passed in the 1990s with which to deal. Different religions can raise different challenges to legislation offensive to their beliefs.

The uananimous Hosanna-Tabor decision this term was a slap-down of the idea that all employers, including reliigous, are basically the same. I think Hosanna was the administration’s dry run for the contraceptive mandate, and it lost unanimously.

Wethal on June 28, 2012 at 5:19 PM

With respect, the EEOC ruling covers employees outside the clerical exemption made in the Tabor ruling. How will say Catholic Health Care providers invoke Tabor as a defense against the EEOC ruling? They aren’t going to ordain nurses, doctors, and janitorial staff as ministers.

lexhamfox on June 28, 2012 at 5:33 PM

This is all for your own good. :D

HondaV65 on June 28, 2012 at 5:30 PM

So you do all this in the service of others, yet it means nothing ?

Bmore on June 28, 2012 at 5:33 PM

Too bad Roberts is so young!

redware on June 28, 2012 at 5:34 PM

ObamaCare: Was the conservative dissent on the mandate originally a majority opinion?

WTF? Does it effing matter?

bgibbs1000 on June 28, 2012 at 5:37 PM

EXCEPT THAT…
IN ORDER FOR A TAX TO BE LEGITIMATE, CONGRESS MUST INITIATE IT IN THE *H*O*U*S*E*….oops. THIS originated in the Senate.

SO, not only is SCOTUS an ACCOMPLICE in this travesty, but
the only so-called justifiable legitimacy of this law IS ILLEGITIMATE!

Czar of Defenestration on June 28, 2012 at 5:32 PM | Delete

As far as I know the Senate took an old bill from the House, gutted it and wrote Obamacare into it.

Valkyriepundit on June 28, 2012 at 5:38 PM

Any other theories? I don’t buy the idea that Roberts flipped at the last minute because of all the liberal hacks screeching at him on MSNBC and in the New Republic.

Who says it was liberals that convinced him to change his vote? This law is a power grab for Washington power brokers on both sides of the aisle.

Daemonocracy on June 28, 2012 at 5:40 PM

FlatFoot on June 28, 2012 at 5:17 PM

That is f#@king retarded.

ThePrimordialOrderedPair on June 28, 2012 at 5:32 PM

And they are posting it in each thread, it’s in the latest -working class hero.

Dr Evil on June 28, 2012 at 5:40 PM

Uhm …no? LOL!!

HondaV65 on June 28, 2012 at 5:28 PM

You’re getting an awfully big thrill out of the death of the nation. Do you actually think anything good is going to pop up in its place in the next decade or two, you sick f@ck?

Yeah … the GOP suck like no ones business and Mittens is going to be a worse candidate than McShame, but you seem particularly thrilled at the tyranny that we’ve got and that has been cemented today. You are one twisted a$$wipe if this makes you happy. Sick and twisted. You are cheering the death of America, as if everything is going to collapse tomorrow and it will all be put back together correctly by next week. Pathetic.

ThePrimordialOrderedPair on June 28, 2012 at 5:41 PM

And they are posting it in each thread, it’s in the latest -working class hero.

Dr Evil on June 28, 2012 at 5:40 PM

Between those fools and honda getting a thrill out of all this we’ve got insanity crashing in from every side. Pure crazy.

ThePrimordialOrderedPair on June 28, 2012 at 5:42 PM

Quit rationalizing GOP incompetence.

HondaV65 on June 28, 2012 at 5:20 PM

LoL wut.

FlatFoot on June 28, 2012 at 5:43 PM

From a 2005 blog (VFR) when Roberts was nominated:

John Roberts as nominee for Supreme Court associate justice was bad enough, but Roberts as nominee for chief justice is truly off-putting and inappropriate. Here is a person who, while evidently bright, has passed his entire career as, well, a careerist, a typical Ivy League, inside-the-Beltway attorney. There is nothing particularly distinguished about him, he’s just a lawyer who has represented a lot of clients, and who has only had two years as a judge. Also, we’re used to the idea that a chief justice should at least look like a chief justice, as Earl Warren and Warren Berger and even the somewhat oddball William Rehnquist did. But Roberts, who is 50, looks a boyish 35, as though he were just a few years out of law school. His callow appearance could be accepted if there were some outstanding achievement or constitutional vision associated with his name, but, as we know, he is a man of mere process, a legal technician who has assiduously avoided stands on substantive and controversial issues and has no discernible judicial philosophy, though we must assume that politically he veers to the left, as shown by his pro bono work for homosexual rights and race preferences. The selection of this careerist nonentity as chief justice of the United States represents a downward turn for America.

TxAnn56 on June 28, 2012 at 4:34 PM

It really is Bush’s fault this time!

Gladtobehere on June 28, 2012 at 5:44 PM

That is f#@king retarded.

ThePrimordialOrderedPair on June 28, 2012 at 5:32 PM

It’s ‘retarded’ to you because you can’t comprehend it.

Blew your mind — or what’s left of it anyway.

FlatFoot on June 28, 2012 at 5:44 PM

To the people spinning this as some sort of super-awesome long term win for conservatism:

Roberts could have gutted the Commerce Clause and STILL called the whole thing unconstitutional.

Or, even better, he could have gutted the Commerce Clause and said it would be permissable as a tax, but since it wasn’t written or argued that way rejected the whole thing.

With four other justices on board for full repeal, this was set up to be the most EPIC smack down of leftist philosophy and federal government overreach in history. And instead, we end up with some bizzaro world judicial activism re-writing the administration’s argument for them in order to make it legal.

Awfulness all around.

BadgerHawk on June 28, 2012 at 5:45 PM

It really is Bush’s fault this time!

Gladtobehere on June 28, 2012 at 5:44 PM

Yes, it is.

I have on occasion defended GWB the past against what I thought was unfair criticism, but there is no doubt he wrought this horrible ruling. He appointed a Chief Justice who rewrites legislation from the bench, all by himself, so he can let it stand.

Time has shown he made a terrible choice for the Chief Justice. At them time I was scratching my head about it. It seemed to me promoting an exiting justice would have made more sense.

farsighted on June 28, 2012 at 5:50 PM

I’m sorry but these conspiracy theories about Roberts helping us or doing it to get Romney in are just plain nuts.

Blake on June 28, 2012 at 5:20 PM

Probably so…but I do think that the whole thing comes down to tax vs mandate…and as has been shown Obama pulled the old bait and switch and now the American people are stuck with this thing and they do not want it.

So, in a way, this probably does help Romney, unless people suddenly change their views on this bill and they have been consistently adverse to it.

So, I do not think that Roberts just did this to help Romney…but that might happen anyway.

However, I would still rather have seen the vote go the other way. I think most people felt the same way. One poll actually had 68% wanting to see the bill struck down.

Terrye on June 28, 2012 at 5:50 PM

I have on occasion defended GWB the past against what I thought was unfair criticism, but there is no doubt he wrought this horrible ruling. He appointed a Chief Justice who rewrites legislation from the bench, all by himself, so he can let it stand.

Time has shown he made a terrible choice for the Chief Justice. At them time I was scratching my head about it. It seemed to me promoting an exiting justice would have made more sense.

farsighted on June 28, 2012 at 5:50 PM

I told someone earlier today that there would be conservatives who would blame this on Bush…he did not believe me. He thought that was just silly.

But here we are. Bush also nominated Alito who voted the way you wanted him to…and while people are mad at Roberts today it should be remembered that when Bush nominated him conservatives were thrilled. They wanted this guy. They liked this guy. They championed this guy. Now, they can act as if they had nothing to do with his nomination, but that is simply not so.

Terrye on June 28, 2012 at 5:54 PM

So to all the GOP supporters. What evidence do you have that for some reason things will be different with moderate Romney?

ClassicCon on June 28, 2012 at 5:24 PM

None. But Obama is a criminal with Fast & Furious, nonenforcement of immigration laws, executive orders to replace laws, campaign fraud, race bias in enforcing discrimanation laws, etc. At least Romney isn’t a crook. I’ll take my chances with Romney.

Gladtobehere on June 28, 2012 at 5:54 PM

“As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.”

And until this morning, that sounded like a good idea. If they dump the traitor from that list sometime in the near future, I’m all for a bench stacked with Scalia/Thomas/Alito clones.

Mr. Prodigy on June 28, 2012 at 4:07 PM

Hell, I’m all for Mark Levin as a Justice.

THAT would be one epic confirmation battle.

Myron Falwell on June 28, 2012 at 5:54 PM

So to all the GOP supporters. What evidence do you have that for some reason things will be different with moderate Romney?

ClassicCon on June 28, 2012 at 5:24 PM

He is not Obama. That is what matters most to me. There is ample evidence that if Romney wins, Obama loses.

Terrye on June 28, 2012 at 5:57 PM

EXCEPT THAT…
IN ORDER FOR A TAX TO BE LEGITIMATE, CONGRESS MUST INITIATE IT IN THE *H*O*U*S*E*….oops. THIS originated in the Senate.

SO, not only is SCOTUS an ACCOMPLICE in this travesty, but
the only so-called justifiable legitimacy of this law IS ILLEGITIMATE!

Czar of Defenestration on June 28, 2012 at 5:32 PM

As far as I know the Senate took an old bill from the House, gutted it and wrote Obamacare into it.

Valkyriepundit on June 28, 2012 at 5:38 PM

Nope.

The PPACA (Patient Protection and Affordable Care Act, i.e.- Obamacare) Bill originated in the Senate.

A previous House bill, which was abandoned, (HR 3962 -Affordable Health Care For America Act) was never passed.

profitsbeard on June 28, 2012 at 6:01 PM

For anyone who wants an education on the supreme court and to hear Roberts really get his a$$ handed to him… listen to the Great One in a few short minutes!!

http://www.marklevinshow.com/sectional.asp?id=32930

LevinFan on June 28, 2012 at 6:03 PM

profitsbeard on June 28, 2012 at 6:01 PM

Sorry, but that’s wrong. The Senate version gutted a House bill:

HR 3590 (notice the “HR”):

To amend the Internal Revenue Code of 1986 to modify
the first-time homebuyers credit in the case of members
of the Armed Forces and certain other Federal employ-
ees, and for other purposes.

And put the steaming pile in there as an amendment. It was bogus but technically legal. That was about the only legal part of this whole criminal process.

ThePrimordialOrderedPair on June 28, 2012 at 6:06 PM

The decision by Roberts is a travesty. He agrees mandate is uncon by virtue of Commerce Clause, but that’s moot as it’s ok as a “tax”?

It doesn’t even pass the “tax” test. It’s NOT a tax, it’s a FINE!

And what is the justification for the fine? You didn’t purchase something the government can’t force you to buy in the first place…b/c of the Commerce Clause!

Good Grief, why go to law school at all if you’re going to waste the knowledge.

LaserBeam on June 28, 2012 at 6:07 PM

Great line by Levin:

Holder was held in contempt a few hours ago and this morning Roberts held us all in contempt!!

LevinFan on June 28, 2012 at 6:08 PM

Today’s SCOTUS decision reminds me of the old lawyer joke…

Q. What do you call the person who graduated at top of their law school class?
A. “Partner“.

Q. What do you call the person who finished last?
A. “Your Honor“.

LaserBeam on June 28, 2012 at 6:11 PM

Look, we can whine about Judas Roberts, but the decision is what it is, and Roberts won’t be going anywhere for twenty years. Instead, how about we party like its 2010 and route the Democrats in another election as we force them to defend this bill. Wanna feel better? Go donate five bucks to a Republican candidate running against red-state Democrat.

Three Senate seats and Romney in the White House has always been the most sure-fire route to full repeal. Nothing today changed that.

Lawdawg86 on June 28, 2012 at 6:15 PM

I expected the melting bunny.

JellyToast on June 28, 2012 at 6:19 PM

Levin just said if he was Roberts he’d be embarrassed to have his name of this terrible opinion.

stukinIL4now on June 28, 2012 at 6:20 PM

I told someone earlier today that there would be conservatives who would blame this on Bush…he did not believe me. He thought that was just silly.

Terrye on June 28, 2012 at 5:54 PM

Fact remains GWB made Roberts the Chief Justice. And Roberts unilaterally declared the mandate is a tax when nowhere in the bill is it called a tax, no legislator called it a tax, and no other justice voting to uphold the bill called it a tax.

The Ginsburg gang did not need to call it a tax to uphold it. Only Roberts did.

I have not held Bush responsible for the mortgage mess and the economic downturn, but Roberts and his ruling are now part of Bush’s legacy.

farsighted on June 28, 2012 at 6:22 PM

Fact remains GWB made Roberts the Chief Justice. And Roberts unilaterally declared the mandate is a tax when nowhere in the bill is it called a tax, no legislator called it a tax, and no other justice voting to uphold the bill called it a tax.

The Ginsburg gang did not need to call it a tax to uphold it. Only Roberts did.

I have not held Bush responsible for the mortgage mess and the economic downturn, but Roberts and his ruling are now part of Bush’s legacy.

farsighted on June 28, 2012 at 6:22 PM

Fact remains Bush nominated Alito who did not support this decision. And so far as I know Ronald Reagan has never been held personally responsible for every disappointing decision Sandra Day O’Connor made. So I am not going to blame for Bush for this, he could not see the future anymore than all those conservatives out there who actually supported Roberts themselves.

That would just be silly. Who knows, Harriet Miers might have voted with Alito.

Terrye on June 28, 2012 at 6:35 PM

With respect, the EEOC ruling covers employees outside the clerical exemption made in the Tabor ruling. How will say Catholic Health Care providers invoke Tabor as a defense against the EEOC ruling? They aren’t going to ordain nurses, doctors, and janitorial staff as ministers.

lexhamfox on June 28, 2012 at 5:33 PM

The teacher in Hosanna Tabor wasn’t an officially ordained minister, but just a teacher in a religious school that was part of their religious mission to spread the Gospel. Anyone who was hired agreed that their employment was part of their mission.

Similarly, any teacher in a Catholic hospital is part of the religious mission to heal the sick as Christ commanded.

Liberty University has raised the same argument: our whole university is a religious mission.

What Obama wanted to do was give the power to define what is a religious mission and what is not, and who is a “minister” (not the same thing as an ordained minister), and who is not. SCOTUS said the government didn’t have this power.

And Hosanna-Tabor did not touch on the RFRA (although I haven’t read it recently).

Wethal on June 28, 2012 at 6:36 PM

What evidence do you have that for some reason things will be different with moderate Romney?

ClassicCon on June 28, 2012 at 5:24 PM

Despite all the complaints about how “moderate” he is, in his actual record he always moved public policy to the right of where it was going. This includes Romney Care since the individual mandate was a conservative think tank hail mary to prevent SINGLE PAYER and the elimination of insurance companies. Do you forget he was governor of Ted Kennedy’s state?

Resolute on June 28, 2012 at 6:36 PM

Levinfan, I could not agree more. I am glad someone said it. I hate Roberts more than Obama. I have always known who Obama is- I thought Roberts a conservative. He will Never have my respect (not that he gives a s—) :-)

AnnaS on June 28, 2012 at 6:41 PM

If it means nothing, why do you do it?

Bmore on June 28, 2012 at 5:28 PM


It’s one thing to engage a troll, a moby or a tantrum voter …

… but I pretty sure that’s a full blown nutcase you are wrangling with there.

PolAgnostic on June 28, 2012 at 6:43 PM

Similarly, any teacher employee in a Catholic hospital is part of the religious mission to heal the sick as Christ commanded.

Correction.

Wethal on June 28, 2012 at 6:44 PM

“As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.”

PD Quig on June 28, 2012 at 6:46 PM

Ronald Reagan has never been held personally responsible for every disappointing decision Sandra Day O’Connor made.

Terrye on June 28, 2012 at 6:35 PM

Reagan made Rehnquist Chief Justice, not Sandra Day.

Rehnquist is Roberts predecessor. Compare and contrast.

Look, I have been a GWB supporter most of the time — though not on his spending. But time has shown he made a very disappointing appointment for Chief Justice. A man who sided with the libs on Obamacare and on SB 1070. On Obamacare he legislated form the bench to do it and he rubber stamped a lie. We will have to live with Roberts as Chief Justice for probably a couple of decades. GWB earns a demerit for that in my book.

farsighted on June 28, 2012 at 6:48 PM

Reading between the lines:

The conservatives thought the mandate was not severable, as they went to great pains to show.

The liberals thought the mandate perfectly constitutional.

Supposition: Roberts was alone in believing the mandate was an unconstitutional exercise of the Commerce Clause, severable from the law.

Roberts could have concurred with the conservatives (or vice versa), leaving a very messy plurality, the mandate struck down (and closely related provisions) but with only Roberts supporting that position! If you have the other 8 Justices arguing that such a holding violates the intent of Congress, its’ really ugly to go there.

If Roberts views the conservative dissent as an overreach – which he clearly does – and the liberal dissent as an abdication – which he also clearly does – he had no alternative in his view but to find a third route.

That third route is hideous, but the lesser of two evils for the integrity of the Court.

Ginsburg’s colorful broccoli metaphor for severability informs this view (“Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”) – I don’t think she was ONLY listing the basic questions before the Court.

I suspect the severability part of the conservative dissent was part of a concurrence.

When it comes to the tax issue, As Scalia writes, “As far as §5000A is concerned, we would stop there. Congress has attempted to regulate beyond the scope of its Commerce Clause authority,4 and §5000A is therefore invalid.”

The Court, under Roberts, could have dismissed the characterization of it as a tax based on the preceding analysis of it being clearly an attempt to regulate commerce – not a tax to raise revenue.

This was Roberts’ opening. He could have given the tax issue short shrift. But he ultimately forged on. His opinion makes clear he felt a duty to find a way to read it as constitutional, that the law “need not be read” in such a way as to make it unconstitutional.

Ginsburg’s opinion also informs my view. She expresses puzzlement that Roberts discusses the Commerce Clause reasoning if he could uphold the law as a tax.

But it is normal to tackle the main argument…it is more astounding to continue onto a lesser justification after finding the law violates the Constitution so clearly.

Roberts opinion is quite lawyerly and I think points to not wanting to inflict damage on the Court with a messy plurality containing a result with which only he agrees.

Crispian on June 28, 2012 at 7:00 PM

Roberts is like those losers who voted for Maobma b/c of “white guilt”.

He’s spineless and forever tarnished his legacy.

I hate him more than Maobama!!

LevinFan on June 28, 2012 at 5:23 PM

I agree with you. Roberts is just as bad or worse than Benedict Arnold, in my opinion.

theaddora on June 28, 2012 at 7:08 PM

I think it’s simpler than that. There’s a huge desire to save Obama’s face.

Alana on June 28, 2012 at 7:09 PM

That comment was to Crispian.

I might add, the desire to save Obama’s face comes at the expense of the entire country. But that is what most everything has been all along anyway.

Alana on June 28, 2012 at 7:10 PM

So, all the HusseinCare exceptions granted so far are pretty much null and void? Since it is now a Federal Tax and there are no exceptions to that.

Unions must love the ruling today.

riddick on June 28, 2012 at 7:10 PM

The bottom line is: Roberts rewrote the Legislation so he could rule the Law Constitutional. So the Courts, in this case the SC, continues on its mission to Legislate opinion into Law thus userping Congress.

aposematic on June 28, 2012 at 7:12 PM

Alana, I don’t think that’s right. The conservative dissent is odd and if it was the majority decision, there must be a better reason for Roberts’ change of heart. He is not a dumb man and knew from the start how serious a striking down of the law would be – I think he just didn’t want to strike it all down. For the reasons I’ve outlined, Roberts being alone in striking down the mandate would have been harmful to the Court’s integrity. Good for us, but not at all for the Court.

Crispian on June 28, 2012 at 7:17 PM

Three Senate seats

Lawdawg86 on June 28, 2012 at 6:15 PM

How do you figure? Snow is being replaced by a liberal. Murkowski is almost a liberal in her views/voting. Brown is not a sure bet as well, and 50/50 even if he is re-elected. We need at least 5-6 pickups, at least.

riddick on June 28, 2012 at 7:18 PM

Alana, I don’t think that’s right. The conservative dissent is odd and if it was the majority decision, there must be a better reason for Roberts’ change of heart. He is not a dumb man and knew from the start how serious a striking down of the law would be – I think he just didn’t want to strike it all down. For the reasons I’ve outlined, Roberts being alone in striking down the mandate would have been harmful to the Court’s integrity. Good for us, but not at all for the Court.

Crispian on June 28, 2012 at 7:17 PM

Can you and Roberts point us all to where in HusseinCare a TAX is discussed?

TIA.

riddick on June 28, 2012 at 7:19 PM

My take.

kingsjester on June 28, 2012 at 7:35 PM

It doesn’t matter. It is what it is. Now everyone put on their big boy pants and get busy campaigning for and then electing people who will repeal this garbage.

ButterflyDragon on June 28, 2012 at 7:35 PM

The teacher in Hosanna Tabor wasn’t an officially ordained minister, but just a teacher in a religious school that was part of their religious mission to spread the Gospel. Anyone who was hired agreed that their employment was part of their mission.

Similarly, any teacher in a Catholic hospital is part of the religious mission to heal the sick as Christ commanded.

Liberty University has raised the same argument: our whole university is a religious mission.

What Obama wanted to do was give the power to define what is a religious mission and what is not, and who is a “minister” (not the same thing as an ordained minister), and who is not. SCOTUS said the government didn’t have this power.

And Hosanna-Tabor did not touch on the RFRA (although I haven’t read it recently).

Wethal on June 28, 2012 at 6:36 PM

The case is all about ministerial exemption. The teacher in question was of the same faith, involved in leading prayers, and religious instruction. You would have a hard time applying this to staff engaged in healthcare who are not even of the same faith.

lexhamfox on June 28, 2012 at 7:36 PM

We’re going to be stuck with weenie, this tool of the Washington elite, for a long, long time.

So discouraging.

minnesoter on June 28, 2012 at 7:37 PM

Reading between the lines:

The conservatives thought the mandate was not severable, as they went to great pains to show.

The liberals thought the mandate perfectly constitutional.

Supposition: Roberts was alone in believing the mandate was an unconstitutional exercise of the Commerce Clause, severable from the law.

Roberts could have concurred with the conservatives (or vice versa), leaving a very messy plurality, the mandate struck down (and closely related provisions) but with only Roberts supporting that position! If you have the other 8 Justices arguing that such a holding violates the intent of Congress, its’ really ugly to go there.

If Roberts views the conservative dissent as an overreach – which he clearly does – and the liberal dissent as an abdication – which he also clearly does – he had no alternative in his view but to find a third route.

That third route is hideous, but the lesser of two evils for the integrity of the Court.

Ginsburg’s colorful broccoli metaphor for severability informs this view (“Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”) – I don’t think she was ONLY listing the basic questions before the Court.

I suspect the severability part of the conservative dissent was part of a concurrence.

When it comes to the tax issue, As Scalia writes, “As far as §5000A is concerned, we would stop there. Congress has attempted to regulate beyond the scope of its Commerce Clause authority,4 and §5000A is therefore invalid.”

The Court, under Roberts, could have dismissed the characterization of it as a tax based on the preceding analysis of it being clearly an attempt to regulate commerce – not a tax to raise revenue.

This was Roberts’ opening. He could have given the tax issue short shrift. But he ultimately forged on. His opinion makes clear he felt a duty to find a way to read it as constitutional, that the law “need not be read” in such a way as to make it unconstitutional.

Ginsburg’s opinion also informs my view. She expresses puzzlement that Roberts discusses the Commerce Clause reasoning if he could uphold the law as a tax.

But it is normal to tackle the main argument…it is more astounding to continue onto a lesser justification after finding the law violates the Constitution so clearly.

Roberts opinion is quite lawyerly and I think points to not wanting to inflict damage on the Court with a messy plurality containing a result with which only he agrees.

Crispian on June 28, 2012 at 7:00 PM

So he decides to inflict damage on us. Thanks traitor

Conservative4ev on June 28, 2012 at 7:39 PM

Alana, I don’t think that’s right. The conservative dissent is odd and if it was the majority decision, there must be a better reason for Roberts’ change of heart. He is not a dumb man and knew from the start how serious a striking down of the law would be – I think he just didn’t want to strike it all down. For the reasons I’ve outlined, Roberts being alone in striking down the mandate would have been harmful to the Court’s integrity. Good for us, but not at all for the Court.

Crispian on June 28, 2012 at 7:17 PM

OK, I’ll rephrase the question since you can’t answer prior one.

How can a judge, ANY judge in ANY lawsuit, rule on something that IS NOT part of the filing?

riddick on June 28, 2012 at 7:40 PM

So, I’ve been busy all day … how many people are referring — as I will in just a moment here — to Roberts as a fuc*king nitwit who hates this idiot legislation, found it unconstitutional, and then magically re-wrote it as a tax bill — to the astonished dissent of Scalia and Alito — in order to prevent overturning it, all the while knowing that it would never, ever, ever get passed again.

What a worthless fuc*king pr!ck.

Anyone else go there yet? Lots, I’ll bet.

Jaibones on June 28, 2012 at 7:43 PM

Roberts’ decision is certainly very puzzling. Parts of it don’t even seem to make sense. I was wondering (only half seriously) earlier if that seizure he had a few years ago had caused damage to his brain. Apparently, I’m not the only one who had that thought. (See Drudge link).

Does anyone know for sure if he is even taking anti-seizure meds?

AZCoyote on June 28, 2012 at 7:47 PM

Alana, I don’t think that’s right. The conservative dissent is odd and if it was the majority decision, there must be a better reason for Roberts’ change of heart. He is not a dumb man and knew from the start how serious a striking down of the law would be – I think he just didn’t want to strike it all down. For the reasons I’ve outlined, Roberts being alone in striking down the mandate would have been harmful to the Court’s integrity. Good for us, but not at all for the Court.

Crispian on June 28, 2012 at 7:17 PM

So on the other hand it’s good for ‘the Court’s integrity’ to think that the CJ is a wet noodle afraid to disagree with the executive branch?

Is it good for ‘the Court’s integrity’ to make it appear that the lawyers for the administration were so incompetent that the CJ had to fix their case for them so he could then rule in their favor?

slickwillie2001 on June 28, 2012 at 7:49 PM

And Roberts unilaterally declared the mandate is a tax when nowhere in the bill is it called a tax, no legislator called it a tax, and no other justice voting to uphold the bill called it a tax.

The Ginsburg gang did not need to call it a tax to uphold it. Only Roberts did.

farsighted on June 28, 2012 at 6:22 PM

He may be a gutless nitwit, but it’s not because he called it a tax … it is a tax, and every single Republican in the congress campaigning against it called it a tax. It was its authors and proponents — the constitutionless retard Obama and Iron-Clad Nitwit Nancy Pelosi — who assured all involved it was “absolutely not” a tax.

Where Roberts effed up was this “functionality” nonsense where he took a commerce clause regulation and decided it was a tax increase, and voted to uphold the law.

Jaibones on June 28, 2012 at 7:51 PM

riddick, calm down, buddy. I stepped away from the Hotair for a moment.

Consider it.

I’m not saying the decision is good. I think it’s a terrible decision. That’s not the discussion.

Courts rule on elements not part of the filing all the time. Alito was accused of doing that in the SEIU case (much to my amusement). There were filings on the tax issue. That argument was made before the lowers courts as well. It was made at oral argument. I’m not sure why you believe otherwise.

Crispian on June 28, 2012 at 7:54 PM

If Elliott Spitzer was “Client #9,” could John Roberts have been “Client #10?”

Just asking?

bw222 on June 28, 2012 at 7:54 PM

If Elliott Spitzer was “Client #9,” could John Roberts have been “Client #10?”

Just asking?

bw222 on June 28, 2012 at 7:54 PM

Are the gay rumors true?

Conservative4ev on June 28, 2012 at 7:56 PM

slickwillie2001,

The scenario I propose indicates the Court making a ruling that only 1 Justice supports. That kind of decision is bad.

Crispian on June 28, 2012 at 7:56 PM

I’m sorry but these conspiracy theories about Roberts helping us or doing it to get Romney in are just plain nuts.

Blake on June 28, 2012 at 5:20 PM /

I agree. One thing I learned from suffering through the Matt Millen Lions era – don’t look for sunshine where there isn’t any.

bw222 on June 28, 2012 at 7:58 PM

This is what you get when you have a Chief Justice who is more worried about his legacy and the left’s perception of “his” court. Pee on the Constitution and the American people so you can keep getting those party invites to DC’s most coveted galas.
Compassionate Conservatism anyone?

chickasaw42 on June 28, 2012 at 7:59 PM

The case is all about ministerial exemption. The teacher in question was of the same faith, involved in leading prayers, and religious instruction. You would have a hard time applying this to staff engaged in healthcare who are not even of the same faith.

lexhamfox on June 28, 2012 at 7:36 PM

Hosanna Tabor is but one ground. There are other 1st Amendment grounds, too.

The Catholic Hospital Association has withdrawn its support of the contraceptive mandate, and now opposes it. A hospital can still argue that this is part of a religious mission, and they notify all prospective employees of this before they’re hired, regardless of whether they are church members of that church. If the applicants disagree, they are free to look elsewhere, but they needn’t join the religion to be part of the mission.

Presumably anyone who hires on accepts the values of the organization. (If they lied to get the job, I doubt the Court would look kindly on them.) If no employee sues for or wants this “benefit,” then why cover it? Because the money goes into a pool to pay for secular employers’ contraceptives and abortifacients.

The broader implication of Hosanna-Tabor is that the Court does not want to get involved in analyzing who is doing what in a religiously-affiliated entity, what the job duties or titles are, or what the mission is. There is great deference from the Court to religion and religious exercise; that’s one reason Hosanna-Tabor was 9-0.

Wethal on June 28, 2012 at 8:05 PM

Can you and Roberts point us all to where in HusseinCare a TAX is discussed?

TIA.

riddick on June 28, 2012 at 7:19 PM

It’s dar worse than just that. Benedict Roberts changes it within his own insane decision from “not a tax” into a tax. The mandate doesn’t become a tax until after section II on page 15, since the end of section II states:

The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.

Then … it becomes a tax. Within pages of the same insane decision. “Insane” doesn’t even really describe the truly bizarre nature of this “decision”.

ThePrimordialOrderedPair on June 28, 2012 at 8:10 PM

Courts rule on elements not part of the filing all the time. Alito was accused of doing that in the SEIU case (much to my amusement). There were filings on the tax issue. That argument was made before the lowers courts as well. It was made at oral argument. I’m not sure why you believe otherwise.

Crispian on June 28, 2012 at 7:54 PM

Because just last month I tried to make an argument in court (no, I am not an attorney, long story) and pointed out something to the judge, via an oral argument, that I can provide proof the other side is lying about main point of their contention. The judge replied that even though he thinks that yes, I may have a point and can most likely provide the proof I mentioned, since it was not in the filings he is looking at he cannot allow it nor rule on it.

That said, I think his ruling in our favor most likely was influenced by my oral argument, or rather, he ruled in our favor since he knew my appeal of a ruling against me would produce that proof in any case.

At least I would like to think his ruling was based on that. Even though he openly declared that anything NOT in the filings cannot be ruled on nor have any part in the decision making process.

So, we’re talking about SCOTUS here and not some local court in GULAG. So, how can SCOTUS rule on something that denied by both Congress and WH when they voted it as law.

If I wouldn’t have first hand experience with this BS I would not be asking the question.

riddick on June 28, 2012 at 8:12 PM

In order for the opinion to have started as a majority wouldn’t Roberts have had to assign the case to Scalia and skip on the opportunity to write it himself?

Or if he did write the majority, he would have had to allow the others to use what his clerks wrote?

amazingmets on June 28, 2012 at 8:14 PM

The scenario I propose indicates the Court making a ruling that only 1 Justice supports. That kind of decision is bad.

Crispian on June 28, 2012 at 7:56 PM

I see your point, but its even worse than it sounds. Are you saying that Roberts disagreed with the other 8 judges and decided to rule on his own perception? Just one person out of 9 and the entire country has to live by the decision of ONE? Out of 9?

riddick on June 28, 2012 at 8:19 PM

I see your point, but its even worse than it sounds. Are you saying that Roberts disagreed with the other 8 judges and decided to rule on his own perception? Just one person out of 9 and the entire country has to live by the decision of ONE? Out of 9?

riddick on June 28, 2012 at 8:19 PM

Roberts is the only one who needed to call the mandate penalty a tax to vote the way he did.

farsighted on June 28, 2012 at 8:20 PM

Roberts is the only one who needed to call the mandate penalty a tax to vote the way he did.

farsighted on June 28, 2012 at 8:20 PM

Only AFTER he called it NOT a tax, as my comment right above shows.

Benedict Roberts is nothing but a hack and a sh!thead. He needs to be impeached. He’s a dangerous joke. Calling something “not a tax” and then “a tax” in the same friggin decision? Give me a break. That’s beyond insane.

ThePrimordialOrderedPair on June 28, 2012 at 8:22 PM

Who gives a sh*t now? If they decided it is constitutional for the government to require me to buy something I don’t want, I no longer care what they think or why they think it; nor will I ever again care what they think of me not caring what they think. From now on I’m in it just for me and to hell with all of government. I now don’t plan to ever vote again for any of them.

MikeA on June 28, 2012 at 8:27 PM

ThePrimordialOrderedPair on June 28, 2012 at 8:22 PM

Benedict Roberts decided how he wanted to vote before he decided the mandate was a tax.

farsighted on June 28, 2012 at 8:28 PM

“So, how can SCOTUS rule on something that denied by both Congress and WH when they voted it as law.

If I wouldn’t have first hand experience with this BS I would not be asking the question.”

What the WH and Congress says are not the only relevant statements, nor do they comprise legal filings – though the statements were included in legal filings on both sides. Basically, Congress can pass a law regulating the coal industry, say it’s doing so to appease the Stay Puft Marshmallow Man, and as long as the Constitution supports that law (under the Commerce Clause, for example), it will be upheld.

The issue in Obamacare isn’t only the labels Congress used (and this is where I think Roberts is wrong) but the fact the the penalty is so blatantly conceived and used as a penalty. It wasn’t done to raise revenue. Roberts is saying the fee works the same way as a tax, regardless of Congressional intent. It is most alarming that he says the mandate unconstitutionally upsets our constitutional order (under the Commerce Clause) but then goes on to explore whether it’s okay anyhow.

The Court can’t rely on statements not in the record, and once brought into court, they are just one piece of evidence.

Crispian on June 28, 2012 at 8:33 PM

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