Mike Lee: There are “signals” in the conservative opinion that Roberts switched his vote

posted at 5:21 pm on June 29, 2012 by Allahpundit

You already knew that, of course, but in case you were thinking that was just me blathering at you, here’s a U.S. senator saying that something smells fishy to him too.

I asked Lee about speculation that the joint dissent filed by Antonin Scalia, Anthony Kennedy and Clarence Thomas and Alito – which argued for invalidating all of Obamacare – was originally drafted as the majority opinion. Among other things, the dissent spends much of the time attacking the government’s arguments, as well as a dissent from Ginsburg, and only passingly refers to the actual majority opinion. This has been seen by some as a strong indication that Roberts may have changed his vote.

“I noticed the same thing,” Lee said. “Although I don’t know exactly what happened within the Court, these are the kinds of signals you tend to see when something like that does happen. It made no sense to me that the dissent referred repeatedly to the ‘Ginsburg dissent’ instead of the ‘Ginsburg concurring opinion,’ for example. And it was written like it was expected to be a majority opinion. And although I don’t know exactly what happened there, that is the sort of thing you tend to see when somebody switches their vote.”

Did Obama’s “intimidation tactics,” to borrow Lee’s phrase from his interview with Philip Klein, in preemptively attacking the Court put enough pressure on Roberts to get him to flip? I don’t really believe that. The One’s gotten ferocious pushback from our side for grumbling about the Court; he’s been conspicuously quiet about it since oral arguments were held on O-Care back in March aside from some half-joking lines at his fundraisers about having to revisit health care in his second term. Some liberals were so worried about him rolling over and playing dead if the Court struck down the law that they felt obliged to beg him publicly to get angry if things didn’t go his way. And of course, poll after poll shows the balance of public opinion on the side of tossing the law in the trash. Even Anthony Kennedy felt comfortable in voting to cashier the whole thing. Yet somehow John Roberts was afraid of The One, whom virtually no one listens to anymore? C’mon.

Orin Kerr wonders if maybe Roberts didn’t change his vote after all:

So it might have happened like this. The Justices voted at conference and there were five votes to uphold the mandate on the tax argument and at least five votes to strike down or modify the medicaid expansion. The first group is Roberts plus the liberals, and the second group is Roberts plus the conservatives. Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself. Roberts doesn’t know how many votes his opinion will get, and he tries to write in a way that might persuade some unlikely votes to join him. Maybe Justice Kennedy will change sides and make the case 6-3, which would avoid the dreaded 5-4 vote. Or maybe he can get some liberal votes to join the section blocking the medicaid expansion…

After Chief Roberts circulates his majority opinion, the conservative dissenters decide to write a joint opinion in response. Why a joint opinion? It took Roberts a while to circulate his proposed majority opinion, so the time pressure is particularly intense on the dissenters. The dissenters have a lot [of] issues to cover and very little time in which to say it, and making it a joint effort allows them to pool resources. They divide the pieces with different Justices working on different issues. The result is a 65 page opinion that is a bit of a patchwork, with different parts by different Justices having different lengths and some portions not really necessary (like severability) included. Some parts may have been drafted before the Roberts opinion circulated, which might explain why parts are duplicative of the Roberts opinion.

Interesting, but this doesn’t explain why the conservative opinion bizarrely passes on the chance to unload on Roberts for his ruling on the tax issue. If Roberts was voting to uphold the mandate on tax grounds from the beginning, Scalia et al. would have had plenty of time to write a withering dissent on that point. Instead, the tax section in the conservative opinion is framed as a straightforward rejection of the government’s argument — just like you’d see in a majority opinion — with nary a word about Roberts’s tiebreaking vote the other way. It’s beyond strange. The simplest explanation is that Roberts was with the conservatives on that point until late in the game, when he finally switched and left them with so little time to respond that they were forced to stick with their majority draft as a “dissent” instead. (Alternately, maybe the conservative bloc was so pissed off at Roberts that they refused to re-shape their opinion into a traditional dissent, precisely so that Court-watchers would pick up on the “signals” of a vote switch that Lee mentioned.) But even the vote-switch theory has problems. For one thing, why would Roberts switch so late? There’s been left-wing media pressure on the Court since the day they took the case. Roberts hasn’t heard anything from them lately that he didn’t hear from the very beginning. Another thing — if Kerr is right that Roberts was voting with the conservatives from the beginning on the Commerce Clause issue, why do their opinion and his opinion both contain sections addressing the Commerce argument? Why didn’t the four conservatives simply sign on to Roberts’s section on Commerce to form a majority? If there was a vote switch at the eleventh hour, it’s mighty odd that anyone devoted time to drafting an entirely superfluous second opinion on the Commerce point.

One more theory via David Frum, quoting a reader who clerked for an appellate court:

I imagine the dissenters either had Roberts’s vote or that Roberts left the post argument conference without commiting to a side and saying something to the effect of “let me see how it writes.” He certainly didn’t trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.

What was written was not measured judicial analysis, but rather an opinion that started with a goal — throw the bill out — and then figured out how to get there, blowing by any precedent in its path. The challengers were right in one respect, in that the mandate was a unique use of federal power that had not been considered by the Supreme Court. But severability had been considered by the Court literally dozens of times, and the four dissenters charged right by what those decisions had said.

So Roberts was left with a choice: engage in the severability analysis himself (a messy task indeed) or find some other way to uphold the bill. He chose the latter, and the result is what we have today.

I’m unconvinced, although it’s natural that an argument involving hyperpartisan conservatives alienating “reasonable” moderates like John Roberts would appeal to Frum. Two problems here. One: Would Roberts really have left the first conference undecided, smugly inviting the two ideological blocs on the Court to dazzle him with their opinions and win him over? I’d imagine that would have pissed off everyone, especially in a case of this magnitude. Since when does any justice get to pass on the initial vote in order to position himself as the ultimate decider? Two: Why would Roberts switch his vote to uphold the mandate just because he was unhappy with the conservatives’ severability section? If that was the case, he could have persuaded the liberals to join him in creating a five-justice majority for a much narrower holding on severability. That arrangement would have been a bit odd given that the liberals wanted to uphold the whole law, but if there were already five votes against the mandate, they surely would have joined Roberts on severability in the interest of saving as much of the law as possible.

There is one good point here, though: Roberts’ opinion was indeed polished enough to make the reader think he and his clerks had spent a lot of time on it. But … if he had enough time after his alleged vote switch to produce a cohesive opinion, why didn’t Scalia et al. have enough time to produce a direct rebuttal to his tax argument in dissent? Granted, the other justices were writing majority opinions for other cases whereas Roberts had been focused entirely on this one over the past few months, but surely they could have squeezed in an extra section in dissent on the most explosive Supreme Court case in ages. I don’t get it.


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Ya’ doan wanna’ mess wid Barack and da boys from Chi-town. He carries even Republican Supreme Court Justices around in his pockets like loose change.

MaiDee on June 29, 2012 at 5:26 PM

In Roberts cowardly decision to prioritize saving the reputation of the court over upholding constitutionally-limited government, he’s only sullied it – and his own – even further.

thirteen28 on June 29, 2012 at 5:27 PM

Hope and Change that Obama was lookin’ for.

Good grief.

Electrongod on June 29, 2012 at 5:27 PM

Did Obama’s “intimidation tactics,” to borrow Lee’s phrase from his interview with Philip Klein, in preemptively attacking the Court put enough pressure on Roberts to get him to flip? I don’t really believe that.

I don’t want to believe it. If it were true, then the land is in way more trouble than already assumed.

Venezuela?

Schadenfreude on June 29, 2012 at 5:27 PM

Roberts is dead to me. We need a litmus test of staunch Federalists for the Bench. Janice Rodgers Brown perhaps.

Roberts is the newest in a long line willing to throw the Constitution in the toilet.

Ca97 on June 29, 2012 at 5:29 PM

Roberts modified content of the 2700 pages to uphold them.

Regurgitate this for a time.

This is a SC precedent, a terrible one.

I don’t care what rockmon will claim, nor what some of the best of you think of us who disagree with you.

Schadenfreude on June 29, 2012 at 5:30 PM

What’s that callous in the middle of Roberts forehead? Is that a …. prayer bump??!!!

Blake on June 29, 2012 at 5:30 PM

Obama hates the middle class.

Because this is the biggest regressive tax he also hates the poor.

The Liar and Charlatan must and will be punished.

Schadenfreude on June 29, 2012 at 5:31 PM

Moot point.

herm2416 on June 29, 2012 at 5:32 PM

then there was the famous case of owen roberts…the switch in time that saved 9…saved from the court packing scheme of another trash talking leftist dim

http://en.wikipedia.org/wiki/Owen_Roberts

but, this is now contested..even tho at the time people thought he changed his vote because of fdr intimidation

r keller on June 29, 2012 at 5:33 PM

i put up decorations for the fourth on wednsday. i can’t wait to take them down thursday.

GhoulAid on June 29, 2012 at 5:33 PM

Whatever personal emotional or intellectual damage caused Benedict Roberts to issue the most insane opinion ever doesn’t matter. He violated any reasonable standard (i.e. non-Roberts) of “good Behaviour” and needs to be impeached and unceremoniously tossed.

ThePrimordialOrderedPair on June 29, 2012 at 5:35 PM

I seriously wonder why so many people opened their wallets yesterday. You work and work and contribute and contribute and vote and they go to DC and :;()/$ you. It’s going to take me months to get over his betrayal of Scalia, Alito, and Thomas. At this point I’m just shellshocked.

Marcus on June 29, 2012 at 5:36 PM

Obama hates the middle class.

Because this is the biggest regressive tax he also hates the poor.

The Liar and Charlatan must and will be punished.

Schadenfreude on June 29, 2012 at 5:31 PM

I know how we can punish him. Let’s go back in time and make Bush appoint an awesome conservative supergenius as Chief Justice who forces Obama’s signature power grab down in flames. Oh wait.

Kataklysmic on June 29, 2012 at 5:38 PM

Only Roberts knows for sure, but it seems like he found a way to make it constitutional as a tax and punted it back into the political arena, thus, sparing the courts another Bush vs Gore political decision. Maybe as Chief Justice, he thought it was in the best interest of the court to punt it back into the arena of politics where it can still be repealed with a simple majority now that it has been upheld as a tax.

TonyR on June 29, 2012 at 5:38 PM

But even the vote-switch theory has problems. For one thing, why would Roberts switch so late?

He sandbag’d them until they very end knowing that his opinion was a sham.

He’s not a brave man.

WisRich on June 29, 2012 at 5:38 PM

We’ll know eventually what happened — either through the clerks or leaks from the justices themselves — but it hardly matters now. The damage is done.

AZCoyote on June 29, 2012 at 5:38 PM

I’m still going with the seizure meds angle.

Fallon on June 29, 2012 at 5:40 PM

“why didn’t Scalia et al. have enough time to produce a direct rebuttal to his tax argument in dissent?”

because Roberts’ switch was not as last minute as people think, kept it to himself, but notified Scalia et al. late in the game.

runner on June 29, 2012 at 5:40 PM

Barack was blackmailing him… he invited Roberts’ dog over for dinner

phreshone on June 29, 2012 at 5:40 PM

Heh, Kat…good upon you!

It is up to Romney, Republicans, and the Tea Party to remind Obama, the Democrats, and the progressives that just as there are no final victories in politics, there are no final defeats. Ignore the president. Romney needs to refight and re-litigate Obamacare, and he needs to do it now.

Why I’m not hopeful.

Schadenfreude on June 29, 2012 at 5:41 PM

It’s a great comfort to me knowing that Roberts was ambivalent about stabbing the Constitution in the back. /sarc

gwelf on June 29, 2012 at 5:41 PM

i can haz choklit bunny now?

ted c on June 29, 2012 at 5:44 PM

From the tax thread

Barry said ObamaCare would “only” cost $800 Billion. The LATEST Congressional Budget Office estimate is $1.6 BILLION!

GarandFan on June 29, 2012 at 5:27 PM

As of March 2012 the CBO tagged it at $1.76 TRILLION over 10 years.

stukinIL4now on June 29, 2012 at 5:36 PM

Schadenfreude on June 29, 2012 at 5:44 PM

….sparing the courts another Bush vs Gore political decision……….

TonyR on June 29, 2012 at 5:38 PM

Strange but it seems to me that, that’s exactly what he got. It was clearly a political decision that did a great disservice to the citizens of the nation. But I’m sure his health care will be just fine.

whbates on June 29, 2012 at 5:45 PM

For one thing, why would Roberts switch so late?

What if Roberts didn’t want to piss Kennedy off enough that Kennedy might switch his vote on the AZ case before it was handed down?

After AZ is announced, he switches his vote.

blindside on June 29, 2012 at 5:46 PM

Ya’ doan wanna’ mess wid Barack and da boys from Chi-town. He carries even Republican Supreme Court Justices around in his pockets like loose change.

MaiDee on June 29, 2012 at 5:26 PM

Who cares, Robert’s chose his legacy over the rights of American’s and signed up to be part of the ignorant like Maidee. fortunately for American’s; both Maidee and Robert’s will be remembered for their stupidity. Landslide Coming this Fall!!! No more Obumbler and with any luck, three replacements on the Supreme Joke…I mean Court; no more Ginsberg, Roberts, or Breyer.

Tbone McGraw on June 29, 2012 at 5:46 PM

Albatross around their necks

Schadenfreude on June 29, 2012 at 5:46 PM

After much reading today of opinions from differing points of view. I still have a muddled perception of what has just occurred. On the one had I find myself having wanted so badly to have 0 care shot down, I have concern my passion for that has made it impossible for me to see the larger picture. Having looked fairly closely now at the longer view and having finally grasp the point Roberts is going after, I still find myself wishing it had been struck down. I try to be optimistic and generally am so by nature. I am trying to look ahead in hopes that keeping the House, putting together 51 votes in the Senate and placing Romney in the WH will get it repealed. There is no other way to go at this point. It is where we find ourselves. My big question is if we are able to get it overturned though the vote, will the supposed gains we are to receive due to Roberts handling of this. Will it have been worth it and will all this just be water under the bridge. I’m still settling on my opinion. I really want to believe Roberts did in fact have Conservative long term interests at heart.

Bmore on June 29, 2012 at 5:46 PM

may explain Scalia’s “grumpiness”, not that Roberts switched his vote, but how he did it ? but wouldn’t it get out that Roberts’ clerks were working on another opinion ? unless he authored most of it himself ?

runner on June 29, 2012 at 5:47 PM

squish

rubberneck on June 29, 2012 at 5:47 PM

There is no doubt Scalia et al. were cold-cocked by Roberts.

Valiant on June 29, 2012 at 5:48 PM

Something smells fishy to me, too.

My instinct tells me that Kagan lacks integrity and that she ran immediately to Obama and blabbed the at-that-point unfavorable decision to him.

Obama is very transparent like a sullen teen, and right away he began whining like a little girl about SCOTUS and seemed to be preparing to run against the at-that-point unfavorable decision.

Then we find out that the decision was favorable the whole time? It doesn’t add up.

Burke on June 29, 2012 at 5:49 PM

I don’t think Roberts was ambivalent at all. He just couldn’t get 5 votes for what he wanted to do. I think he wanted to strike the mandate and the Medicaid expansion and let the rest of it stand. I think he was surprised that Kennedy didn’t agree to that.

The most important thing to him was not throwing out the whole law. So he had to find a way to uphold the mandate, and that’s what he did.

Why look for deeper explanations on the dissent? It was written by a committee and it is sloppy. Roberts was a majority of one and wrote the whole thing himself.

rockmom on June 29, 2012 at 5:50 PM

Bmore on June 29, 2012 at 5:46 PM

Nothing ever works out so perfectly. Therefore, you know what to do.

Schadenfreude on June 29, 2012 at 5:50 PM

If Jugears knew ahead of time, it sure explains why the demagoguing of the court suddenly stopped.

Regardless, when the chips are down, we now know that Roberts isn’t they guy to count on.

I have a very bad feeling about John Roberts going forward.

blindside on June 29, 2012 at 5:51 PM

So he had to find a way to uphold the mandate, and that’s what he did.

rockmom on June 29, 2012 at 5:50 PM

…by modifying part of what the 2700 pages contain.

Imagine the SC precendent. In British law this is almost everything.

Schadenfreude on June 29, 2012 at 5:52 PM

I think it went something like this, Barry and the boys found something on Roberts, they had their team draft the opinion they wanted, handed it over to Roberts at the last minute with a threat of accept this or have whatever trash they have on him blown wide in the media. Maybe I’m wrong…but sure does seem to fit and follows with the lefts tactics. I just can’t see any other way that Roberts would have decided in this fashion.

BadMojo on June 29, 2012 at 5:52 PM

S/b precedent

Schadenfreude on June 29, 2012 at 5:52 PM

Allahpundit wrote:

I don’t get it.

Of course you don’t, my dear.
You’re a conservative after all. And we all know conservatives are clueless losers, forever on the wrong side of history don’t we?

MARCU$

mlindroo on June 29, 2012 at 5:52 PM

Repeal him through reconciliation! He’s a tax on my nerves! What? According to him, words have no meaning!

Conservative Independent on June 29, 2012 at 5:53 PM

In the entire saga, Kennedy is the real, and unexpected, hero.

Schadenfreude on June 29, 2012 at 5:54 PM

I’m not gonna obsess over it any more. It’s done and I can’t do anything about it. I can work to make sure we win a Senate majority.

a capella on June 29, 2012 at 5:55 PM

the vile left had their say …. Activist john roberts had his say … In November WE will have our say. The dissection of the decision is a waste of time. Like asking why didn’t he/she call me?!?!?!?

WhatsRight on June 29, 2012 at 5:56 PM

i put up decorations for the fourth on wednsday. i can’t wait to take them down thursday.

GhoulAid on June 29, 2012 at 5:33 PM

I am struggling with whether or not I even want to celebrate the 4th this year. Not much to celebrate. Certainly not our independence, because we don’t have it anymore. We have rejoined Europe.

Now don’t get me wrong. Saying this doesn’t mean I will not vote come November, because that is our last shot. This is our liberty and freedom we are talking about.

But yesterday Roberts just handed the keys to our liberty and freedom over to Obama and his minions, and we already know what they will do with them.

Sterling Holobyte on June 29, 2012 at 5:57 PM

WhatsRight on June 29, 2012 at 5:56 PM

a capella on June 29, 2012 at 5:55 PM

Yep and yep

gophergirl on June 29, 2012 at 5:58 PM

Roberts changed his vote, but didn’t get around to circulating his opinion until the last minute. It is obvious that this is what happened. * cowardly move by a cowardly justice.

The dissenters will be remebered well. Roberts will be remembered as the disgusting sell-out that he is.

McDuck on June 29, 2012 at 6:00 PM

I understand that Roberts was concerned about how the court’s ruling would be viewed by the public. Prior rulings (like Citizens United) have been accused (by Obama, the liberal elites and the MSM) of being overly politicized, and he was undoubtedly anxious not to have the court’s “legitimacy” called into question by a 5-4 ruling striking down the law a few months before the presidential election.

But if Roberts really wanted to exercise judicial restraint, then he could have concluded that it was a tax, and held that resolution of the case was therefore barred by the Anti-Injunction Act. That would have pushed resolution of the law’s validity way past the upcoming election, and given the court a chance to have full briefings on all the other issues related to the imposition of such a tax (such as the issue of whether or not it’s a direct tax, if apportion is required, etc.). That result certainly would have disappointed a lot of people (both left and right), but it would have provided Roberts with cover from any charge of judicial activism or rendering an overly-politicized decision.

I think the Wall Street Journal writer had it correct this morning, when he said that Roberts ultimately bowed to political pressure and his own vanity. Roberts decided he wanted to uphold the law, so he engaged in the worst kind of sophistry to do it (it’s a tax for purposes of the commerce clause analysis, but it’s not a tax for purposes of the Anti-Injunction Act, etc.) Roberts decided that protecting his own legacy (as judicious and fair-minded) and trying to appease the elites on the left (like Larry Tribe) was more important than fulfilling his oath of office to uphold and defend the constitution. His decision was foolish and wrong.

AZCoyote on June 29, 2012 at 6:01 PM

Roberts is judicially schizophrenic.

His decision is moronically self-divided, sophomorically legal-oid,
tortured, illegimate on many points of procedure on Congressional fine lawmaking restrictions, and, as tax “law” is is sheer imbecility.

He should be impeached as incompetent.

profitsbeard on June 29, 2012 at 6:01 PM

So Roberts was left with a choice: engage in the severability analysis himself (a messy task indeed) or find some other way to uphold the bill. He chose the latter, and the result is what we have today

.

I think the idea that Roberts was working to find a way to get the SCOTUS out of the line of fire on Obamatax is accurate. Though if that is the case, why did they allow the administration to argue that Obamatax was both a tax and not a tax? Sverability of anything other than a complete up or down ruling would indeed be problematic but no more so than a Chief Justice of the United States taking pen in hand and re-writing legislation.

Happy Nomad on June 29, 2012 at 6:03 PM

I don’t know AP if this has anything to do with this puzzle, but I came across this today. “Last Friday was the deadline for justices to hand in dissents. Then whoever is writing the majority opinion – the betting is on Chief Justice John G. Roberts Jr. – has the option of responding to any criticism of the ruling in his own opinion.” This article was written on June 21, 2012. So the deadline for submitting dissents would have been June 15, 2012.

I don’t know enough about how the Court works, etc. But just thought this was interesting.

http://www.chicagotribune.com/news/nationworld/sns-la-pn-supreme-court-may-release-healthcare-verdict-thursday-20120620,0,4744872.story

bluefox on June 29, 2012 at 6:03 PM

I’m not gonna obsess over it any more. It’s done and I can’t do anything about it. I can work to make sure we win a Senate majority.

a capella on June 29, 2012 at 5:55 PM

I’ll be working my ass off for Deb Fischer…

OmahaConservative on June 29, 2012 at 6:08 PM

I’m still going with the seizure meds angle.

Fallon on June 29, 2012 at 5:40 PM

That’s vile.

msmveritas on June 29, 2012 at 6:08 PM

Roberts is judicially schizophrenic.

His decision is moronically self-divided, sophomorically legal-oid,
tortured, illegimate on many points of procedure on Congressional fine lawmaking restrictions, and, as tax “law” is is sheer imbecility.

He should be impeached as incompetent.

profitsbeard on June 29, 2012 at 6:01 PM

Graveyard Poetry. … It’s all we have left, but still nice.

ThePrimordialOrderedPair on June 29, 2012 at 6:10 PM

The economic and social enormity of the perfidy committed by Roberts rivals that of Pearl Harbor and 9-11. I henceforce propose that the name ROBERTS always be associated with perfidy and treachery. As an adjective a ROBERTSIAN ACT would be where a soldier deliberately led his troops into an ambush. As a noun the scientist who sold nuclear secrets to Iran would be the JOHN ROBERTS of his country. As a verb, instead of saying someone was “screwed” or “f—–” he was ROBERTSED.

MaiDee on June 29, 2012 at 6:10 PM

(Judge?)John Roberts is to law, as Joe Biden is to oratory.

SMACKRUNNER on June 29, 2012 at 6:11 PM

But yesterday Roberts just handed the keys to our liberty and freedom over to Obama and his minions, and we already know what they will do with them.

Sterling Holobyte on June 29, 2012 at 5:57 PM

I think we need to be fair here. I’m as ticked off at Roberts as anybody but the whole process leading to Obamatax has been ugly. Dems passed it in the middle of the night with all sorts of deals culminating with Bart Stupak’s treason in search of a cushy administration appointment. I have no idea why Roberts did what he did but this was an ugly law from the beginning. I’m not sure that the SCOTUS could have come up with a definitive ruling one way or the other because of all the issues involved. Roberts action essentially pushed this back to the political realm.

Happy Nomad on June 29, 2012 at 6:11 PM

Only Roberts knows for sure, but it seems like he found a way to make it constitutional as a tax and punted it back into the political arena, thus, sparing the courts another Bush vs Gore political decision. Maybe as Chief Justice, he thought it was in the best interest of the court to punt it back into the arena of politics where it can still be repealed with a simple majority now that it has been upheld as a tax.

TonyR on June 29, 2012 at 5:38 PM

… and in so doing demonstrate the the Supreme Court is an essentially superfluous waste of money and resources? By doing this, and as written in his opinion, he basically told citizens not to bother the Supreme Court with their petty concerns about upholding the Constitution and take care of any gripes they have with laws by using the ballot box. This is disturbing on many levels, not the least of which this once again pushes the US further from the founded Constitutional Representative Republic and closer to a full Democracy — i.e, two wolves and a sheep voting on what to have for lunch.

AZfederalist on June 29, 2012 at 6:12 PM

Roberts modified content of the 2700 pages to uphold them.

Regurgitate this for a time.

This is a SC precedent, a terrible one.

I don’t care what rockmon will claim, nor what some of the best of you think of us who disagree with you.

Schadenfreude on June 29, 2012 at 5:30 PM

Why couldn’t he be as generous to those that wrote and defended Arizona’s SB1070?

slickwillie2001 on June 29, 2012 at 6:18 PM

I think we need to be fair here. I’m as ticked off at Roberts as anybody but the whole process leading to Obamatax ObamaMandate has been ugly. Dems passed it in the middle of the night with all sorts of deals culminating with Bart Stupak’s treason in search of a cushy administration appointment. I have no idea why Roberts did what he did but this was an ugly law from the beginning.

Happy Nomad on June 29, 2012 at 6:11 PM

All the more reason that the SCOTASS should have treated the law with the same level of contempt the criminals forcing it through by hook or by crook showed to America and Americans.

As the Talmud says, “One who becomes compassionate to the cruel will ultimately become cruel to the compassionate,”

ThePrimordialOrderedPair on June 29, 2012 at 6:19 PM

“Did Obama’s “intimidation tactics,” to borrow Lee’s phrase from his interview with Philip Klein, in preemptively attacking the Court put enough pressure on Roberts to get him to flip?”

In the end, it doesn’t matter because the ruling has been made; this is all academic.

In the spirit of academia, I’ll add this: If the above is true, is JRobert’s THAT spineless?? Really??

Intrepid767 on June 29, 2012 at 6:21 PM

Gonna be awhile before, if we ever find out the truth. Did anyone hear Roberts’ comment about having to spend some time in an “impregnable island fortress” (like Malta in the Mediterranean)? Yeah, hide out like Obungler has to.

stukinIL4now on June 29, 2012 at 6:22 PM

I am struggling with whether or not I even want to celebrate the 4th this year. Not much to celebrate. Certainly not our independence, because we don’t have it anymore. We have rejoined Europe.

But yesterday Roberts just handed the keys to our liberty and freedom over to Obama and his minions, and we already know what they will do with them.

Sterling Holobyte on June 29, 2012 at 5:57 PM

So spend the day writing the second Declaration. … or at least the long list of usurpations. I’m thinking that may come in handy here in the near future.

I’m not sure that the SCOTUS could have come up with a definitive ruling one way or the other because of all the issues involved. Roberts action essentially pushed this back to the political realm.

Happy Nomad on June 29, 2012 at 6:11 PM

They did have a definitive ruling. Roberts could have simply sided with the four dissenters and this abortion of a bill would have been dead, buried, and people dancing on its grave. Instead, like the evil Dracula, it keeps arising from its coffin and terrorizing the citizens. Roberts was a coward and abused the Constitution for reasons only known to him. Look, this stuff isn’t rocket science. a) the Constitution was written to ensure that the US government had limited power, b) The health care industry is 1/8 of the US economy, c) the US government taking over the health care industry is neither limited nor permitted by the Constitution. Further, this takeover requires the confiscation of wealth from some people to be redistributed to those who did not work for it, therefore, d) the law is blatantly unconstitutional and anti-freedom and anti-liberty and should have been killed.

If someone feels otherwise, the founders included a mechanism to allow them to exercise such a power. However, instead of using the amendment process, the statists chose to use skulduggery, bribery and graft to get what they wanted. This bill is evil on so many levels

AZfederalist on June 29, 2012 at 6:25 PM

Years from now law students will look up the word CRAP in their law dictionaries and see just one thing .A picture of Benedick Arnold Roberts and these words.Took a simple unconstitutional law and turned it into a big pile of CRAP.

logman1 on June 29, 2012 at 6:25 PM

Did anyone hear Roberts’ comment about having to spend some time in an “impregnable island fortress

stukinIL4now on June 29, 2012 at 6:22 PM

“inthemiddle” was crowing about this earlier and how unfair it was that this beautiful man is now feeling the right’s cold shoulder. She’s ready to have his baby whereas Wednesday night she was burning him in effigy.

Kataklysmic on June 29, 2012 at 6:27 PM

He is either really stupid and arrogant or is really stupid,
arrogant and was threatened/blackmailed.

Also – forget the “pie in the sky” pipe dreams that people are
throwing out there that he made the decision to save the country
or other bs.

His job is to defend and protect the constitution. He did not
do his job.

Amjean on June 29, 2012 at 6:28 PM

Did anyone hear Roberts’ comment about having to spend some time in an “impregnable island fortress” (like Malta in the Mediterranean)?

stukinIL4now on June 29, 2012 at 6:22 PM

… as well he should. Shows that he knows he did not do the right thing. Those who do right are not afraid to stand up for their convictions. Of course, if he had done the right thing, he would have had more to fear because the leftists are the truly vindictive ones.

AZfederalist on June 29, 2012 at 6:28 PM

I’m still settling on my opinion. I really want to believe Roberts did in fact have Conservative long term interests at heart.

Bmore on June 29, 2012 at 5:46 PM

Like you, I’ve gone through the same reading and legal analysis of the Roberts’ majority opinion and the others, and have been thinking about it almost all day.

An article today, written by one of his former clerks, supports the conclusion that I had reached even before reading it and I think makes the most sense. I honestly believe that Roberts, here, was playing long ball, particularly on the commerce clause, the tax powers finding, in effect, a feint, and unlikely to ever be used to get around the commerce clause holding.

TXUS on June 29, 2012 at 6:29 PM

Just think-Chief Justass Roberts is exactly the type of nominee we will get with a President Mittens.Encouraged conservatives?

redware on June 29, 2012 at 6:31 PM

Look at this interview with Randy Barnett, who was the main architect of the arguments that our side presented to the court. It gives a plausible reason for what Roberts did and discusses the implications of the court’s tax authority holding going forward.
http://washingtonexaminer.com/randy-barnett-says-roberts-tax-power-argument-is-lame-but-easily-fixed/article/2501028

txmomof6 on June 29, 2012 at 6:32 PM

Roberts managed to ruin his good name and convert the country to socialism all with the same vote. Why would he do it?

I haven’t seen a plausible explanation yet, other than the Obama minions got to him.

Axion on June 29, 2012 at 6:32 PM

I’m back to my first position: What a fuc*king coward/idiot.

Jaibones on June 29, 2012 at 6:34 PM

Why aren’t the SCOTUS deliberations or whatever they are called on CSPAN? Don’t we have a right to know what happens? Seems to me that the least they could do is provide a play by play of how it all went down.

Then again, if the vote had gone the other way, I wouldn’t even care…

Mr_Magoo on June 29, 2012 at 6:36 PM

Who cares if he switched his vote? What are we Kos Kidz? Let’s move the bleep on and figure out how to win this election.

AYNBLAND on June 29, 2012 at 6:37 PM

It seems likely he changed his vote at some point, and I wouldn’t discount the possibility that Leftist pressure was partly (or mostly) to blame. We saw article after article before Thursday talk about how concerned he’d be with the prestige of the Court. Everyone knew a 5-4 split to overturn would be decried as yet another sign SCOTUS was too partisan and political, and apparently he was incredibly sensitive to that in light of the attacks in the aftermath of Citizen’s United. Nothing else makes sense otherwise, imo.

But it doesn’t matter at this point…what’s done is done. I still cannot get over the fact we had Kennedy on our side, ready to toss everything out. We had Kennedy, man. So close…ugh.

changer1701 on June 29, 2012 at 6:40 PM

There is one good point here, though: Roberts’ opinion was indeed polished enough to make the reader think he and his clerks had spent a lot of time on it. But … if he had enough time after his alleged vote switch to produce a cohesive opinion, why didn’t Scalia et al. have enough time to produce a direct rebuttal to his tax argument in dissent? Granted, the other justices were writing majority opinions for other cases whereas Roberts had been focused entirely on this one over the past few months, but surely they could have squeezed in an extra section in dissent on the most explosive Supreme Court case in ages. I don’t get it.

Most of us don’t get it. Including many who are confident they have it all figured out.

It’s a very puzzling opinion.

In programming, you sometimes have what’s called the “brute force” approach to solving a problem. That is, avoid any fancy algorithms or extra analysis, and just take a methodical approach. This is generally recognized as not elegant and somewhat clumsy. In spite of that, the brute force approach is generally recognized as reliable. Sometimes, the “elegant” solutions to solving a problem fail under unexpected circumstances.

Roberts seems to me to have tried an elegant or clever solution to the ObamaCare conundrum, where a simple “brute force” approach would have worked better. Just deal with the issues as they are, and don’t worry so much about whether some people call you partisan or activist.

tom on June 29, 2012 at 6:42 PM

Remember when The Left were making fun of the way the Roberts dressed their kids? Good times. Good, good times.

SouthernGent on June 29, 2012 at 6:43 PM

Let’s talk about this and how to get this talked about instead of barking at the moon……. http://factcheck.org/2012/06/obamas-outsourcer-overreach/

If Robert’s did what Krauthammer said he did or there is some leftist pressure or he was blazing a path to a “Robert’s Court”, nothing we can do about it. We can do something about that article above.

AYNBLAND on June 29, 2012 at 6:47 PM

Want to rein in Roberts & Kennedy after a Romney victory? Add more Justices to the Court. Originalists, to be specific. It can be done by changing 28 USC § 1.

Pack the Court.

HeckOnWheels on June 29, 2012 at 6:50 PM

For one thing, why would Roberts switch so late?

Because his family was seriously and believably threatened with deadly harm by thugs employed by the Administration. This is not girl’s softball, and the Skinny Socialist has been known to eliminate enemies and nefariously press his positions before. He is the ultimate Chicago player, and this is how they play.

It’s so simple to see when you step away from all the “Court Signals” crap that all the pols try to spin.

NOMOBO on June 29, 2012 at 6:53 PM

Just think-Chief Justass Roberts is exactly the type of nominee we will get with a President Mittens.Encouraged conservatives?

redware on June 29, 2012 at 6:31 PM

We also might get an Alito.

However, with Obumbler, we are guaranteed, got that?, guaranteed to get a Ginsburg, Sotomeier, or Kagan. Absolutely guaranteed. So, do you want what is behind door #1 or this lovely pile of steaming dog doo, sitting right here before you?

My choice would be door #1, your mileage may vary.

AZfederalist on June 29, 2012 at 7:00 PM

I’m not gonna obsess over it any more. It’s done and I can’t do anything about it. I can work to make sure we win a Senate majority.

a capella on June 29, 2012 at 5:55 PM

That’s about it. It’s been done. We know what we have to do and, as Erika said earlier in another post, this is what happens when people get complacent.

Our choice is Obama and Romney (no, sorry, no Gary Johnson, FR, so no spamming). Get rid of Obama and get as many conservatives, not “republicans” into office as possible. Keep doing this until all the squishes and idiots are gone. It may take a few cycles, but this is what happens when left alone too long.

We can do this. It won’t be easy and sometimes we’ll get snookered (like Roberts) or lose, but it has to be done, right?

And it is do-able. We have a darned good chance of keeping congress, gaining at least 51 in the senate and the WH.

kim roy on June 29, 2012 at 7:13 PM

i’m so mad over this i’m numb. i was furious when it passed the senate- now i’m just stunned and feel like i’m having a particularly surreal, indescribable drug flashback. or like someone i love died an absurd could have been avoided death.

and if conservatives keep crooning about the deep wisdom of chief azz clown roberts, i could go postal. roberts is not a sly conservative genius. in the colorful terminology of hockey rink, he’s a ‘gutless puke’. he punted while punching us square in the face, ignoring his responsibility, like everyone else in washington, to the Constitution. all IS vanity in washington. gutless pucking pukes.

mittens on June 29, 2012 at 7:20 PM

Whether we like Romney or not (and I don’t), there is no other choice if we are to stop Obama.

bw222 on June 29, 2012 at 7:21 PM

It made no sense to me that the dissent referred repeatedly to the ‘Ginsburg dissent’ instead of the ‘Ginsburg concurring opinion,’ for example. And it was written like it was expected to be a majority opinion.

Just so, anyone can read it. He did a late flip.
Can’t he be asked why – could he really have come around to the taxing power argument? Seems fishy.

Chessplayer on June 29, 2012 at 7:22 PM

Where is this polish in SCJR’s ruling? I’ve read it and it’s illogical. His arguments about the law not being a tax for the purpose of the Anti-Injunction Act, but a tax for the purpose of creating valid law are pathetic.

Everything I’ve read so far has stated that’s never occurred in the history of the court. To me, this decision is political and not well reasoned. He thinks he’s King Solomon and now is the time to “split the baby” to show the Court isn’t political. Unfortunately, since neither party actually wanted to do so, he gave the lefties the biggest government expansion since Nixon.

His logic was no less than the Warren Court. A true disgrace.

njrob on June 29, 2012 at 7:27 PM

In ten years many will be wondering how the federal was granted the powers to require each and every american to pay for an entertainment, media and copyright subscription fee because record companies, movie studios and publishers will buy off politicians to “regulate” the market since they’re not making enough due to illegal copying.

You’ll have to pay, by law, for an Apple streaming service, GoogleTV, Hulu, Netflix, HBO, spotify and half a dozen other services though your Internet service provider.

Quick question, will the Amish and Christian Scientist forced to by into health insurance pools?

dougless on June 29, 2012 at 7:31 PM

It may look like Roberts stabbed the Constitution in the back, it may sound like Roberts stabbed the Constitution in the back, it may may even feel like Roberts stabbed the Constitution in the back, but don’t let that fool you, he really did stab the Constitution in the back.

VorDaj on June 29, 2012 at 7:37 PM

Quick question, will the Amish and Christian Scientist forced to by into health insurance pools?

dougless on June 29, 2012 at 7:31 PM

I’m a little curious about that as well, and not just Amish and cults, but also mainstream religious organizations.

Since the SC has ruled that Obamatax is a tax, then are religious institutions and their non-profit operations even subject now to the HHS mandate? Those institutions and non-profits are, by definition, tax-exempt and since ObamaTax is a tax, then they should be exempt.

What am I missing?

AZfederalist on June 29, 2012 at 7:44 PM

Mike Lee: There are “signals” in the conservative opinion that Roberts switched his vote

Maybe Roberts had a little talk with Romney…

FloatingRock on June 29, 2012 at 7:46 PM

I think the real threat was court-packing, or some Executive scheme to effectively take powers away from the Supreme Court if they kept getting in 0bama’s way. This isn’t some invite to a cocktail party Roberts was worrying about. 0bama could re-enact the entire filmography of that cannibal pr0n guy, kitten snuff films included, and the press would let him get away with it. Who would care about little things like the balance of power?

So why not write an opinion essentially throwing the whole question to the people, especially as they seem likely to toss the threatening executive out on his ear this fall?

Sekhmet on June 29, 2012 at 7:47 PM

Want to rein in Roberts & Kennedy after a Romney victory? Add more Justices to the Court. Originalists, to be specific. It can be done by changing 28 USC § 1.

Pack the Court.

HeckOnWheels on June 29, 2012 at 6:50 PM

No, no, no, a thousand times NO!

FDR wanted to increase the Court to 15 justices so he personally could appoint a friendly majority. Adding or subtracting the number of justices solves nothing and can be used against you in the future.

The best solution is to work with the court we have and elect conservatives that will in turn appoint conservative justices.

Ace ODale on June 29, 2012 at 7:48 PM

After two days of reading and thinking about it there is little doubt in my mind Roberts flipped his vote, and he did it fairly recently.

Repeating and expanding on what I posted on a headline thread…

I think Roberts caved to political pressure and exhibited gutless judicial cowardice. From what I’ve read he agrees with the dissenting opinion almost completely and disagrees with the Ginsburg gang’s opinion almost completely. Yet he voted to uphold Obamacare using a narrow argument no one agrees with and that is full of holes. The Obama camp and the Dems are still saying the mandate penalty is not a tax, completely dismissing and ignoring Roberts’ assertion.

Roberts was afraid of the possible consequences of tossing out all of Obamacare, afraid of the demons in his own mind. Apparently upholding almost all of it (except for the provision withholding all Medicaid from uncooperative states) or striking it all down were his only choices, since it seems Alito, Kennedy, Thomas, and Scalia all voted to toss the whole thing.

He did not have the courage to do that so he rationalized voting to uphold it by ignoring the actual text of the bill and by rewriting the mandate penalty as a tax in his own head. He ruled on what Congress could have done and his perception of its intent rather than on what it actually did and said.

Roberts legislated from the bench out of fear and he made a political decision, not a decision based purely on the letter and language of the law.

And the saddest part is his decision has no legally binding status or weight at all — neither the part declaring the mandate a tax or his opinions on the limitations of the Commerce Clause.

farsighted on June 29, 2012 at 7:53 PM

Did Obama’s “intimidation tactics,” to borrow Lee’s phrase from his interview with Philip Klein, in preemptively attacking the Court put enough pressure on Roberts to get him to flip?

Has anyone seen Justice Roberts’ wife and children lately???

Glenn Jericho on June 29, 2012 at 8:04 PM

The federal government sucks, and the supreme court is no exception.

All of them have done nothing but increase the size and power of government for decades. F**k the court and f**k roberts.

The only people who benefit from the federal government today are losers and large corporations.

The government has the power to order everyone’s life, apparently, except criminals and losers who refuse to be responsible for themselves.

You know how government regulations and mandates help big corporations.

Apparently the ONLY way to limit government is through elected officials. The constitution is in no way a rampart against government power over the individual nor federal power over the several States.

jaime on June 29, 2012 at 8:05 PM

Roberts hasn’t heard anything from them lately that he didn’t hear from the very beginning.

How the hell do you know what he heard? Because we live in a wonderful world where as ed says, the left are “just good Americans that think things should be done a different way.”? How do you know what phone calls he was getting from harvard? What phone calls his wife was getting? What visits he was getting? You really can’t be that naive. I wasn’t shocked yesterday, I was shocked the day before when laurence tribe called this. He knew what was going to happen because he gave this to roberts.

peacenprosperity on June 29, 2012 at 8:12 PM

So it might have happened like this. The Justices voted at conference and there were five votes to uphold the mandate on the tax argument

The problem with this speculation is that Ginsburg and the other three libs did not need to vote on the “tax argument”. They thought the mandate was constitutional under the Commerce Clause. They did not need to consider, analyze, think about, or mull over the “tax argument”. Only Roberts did.

So who asked for a vote on the “tax argument”? And when? Was that the first vote on the mandate? Seems highly unlikely. Or did it come after a vote on the Commerce Clause argument and only because Roberts asked for a vote? And that is assuming there ever was a vote on the “tax argument”, which is speculation.

Apparently none of the liberal justices cited the “tax argument” as their reason, much less their primary reason, for voting to uphold the mandate.

It appears Roberts was the only one who needed the “tax argument” to vote to uphold.

farsighted on June 29, 2012 at 8:19 PM

Let’s face it, Roberts handed Romney a huge victory too, not just Obama. Not only did Roberts uphold Obamacare, but by extension he upheld national Romneycare as well. Romney and Obama should both be very happy.

FloatingRock on June 29, 2012 at 8:27 PM

Roberts hasn’t heard anything from them lately that he didn’t hear from the very beginning.

That people would say such stupid things in this day and age is mind boggling. Do you really believe so many strong rising conservatives make bizarre turns or drop out of politics because they really have decided to spend more time with thier families? Guys like JC Watts who suddenly put the brakes on? Watts would have been the first black president but one day a large brown envelope appeared on his desk and after he was able to take a look at the contents and let it sink in he got a phone call telling him what he would be allowed to do in the future and what he wouldn’t. There are guys still in congress who conservatives were all excited about and then suddenly they just fade into the background. Flake, Pence, Shadegg and countless others. If the left can’t find real dirt they will manufacture it and they let these guys know how they will go about destroying them and thier families. Of course these guys get back in line and behave. They watch TV and see how the media is and how gutless the republican leadership is.

peacenprosperity on June 29, 2012 at 8:29 PM

Mike Lee: There are “signals” in the conservative opinion that Roberts switched …

AC/DC?

KOOLAID2 on June 29, 2012 at 8:34 PM

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