The Roberts Court – The aftermath

posted at 8:31 am on June 30, 2012 by Jazz Shaw

Having had a couple of days to absorb the tumultuous events of Thursday in the Supreme Court, it’s become clear to me that there was a lot more going on than a couple of laws standing or falling. Both of the cases I was watching closely went the way I predicted, but also the way I personally hoped they would not. The Obamacare decision has already been analyzed to death, with plenty of people passing judgement on it based on how they had hoped it would turn out. For my money, the best analysis was from Krauthammer.

But rewinding a few sentences, the word “personally” plays a very large role in my take on what these cases portend for the future and what they tell us about the state of the Supreme Court and the nation at large. The immediate outcry against Chief Justice John Roberts was massively high in volume and painful to behold. No matter how he ruled or what he wrote in Citizens United and Heller, (and too many more cases to name) it was all washed away in a moment. Roberts was pronounced everything from a traitor to a coward. And that’s about the point where I realized there was a bigger story underneath the story.

One point I have been trying to make – with an astonishing lack of success – for some time now is the growing sense of dread I feel over appointments to the Supreme Court. Electing the “right” president has become an even larger battle across the nation because of the crushing necessity to have them appoint the “right” kind of justices to the court. But what does that mean? For far too many of us it means justices who will vote the way we want them to, regardless of how many of us are actual constitutional scholars. We may love the constitution and trumpet about it during every political debate, but I would argue that darn few of us actually know the whole body of work involved in understanding and interpreting a more than two centuries old document in terms of how it applies to the complexities of 21st century life. The law is neither liberal nor conservative. It is neither Left nor Right. It’s just the law. Sometimes it goes the way we would like and sometimes it doesn’t.

This was brought clear to me by the less commented upon case of Thursday – that of Stolen Valor. I know how I wanted the ruling to go. The man at the center of the case disgusted me. My father was a decorated hero of WW2. Those who steal the adoration of the nation for such heroics on false pretenses disgust me and I want to see them punished. And yet, when I finished reading the court’s decision I understood and accepted it. I didn’t like it, mind you. But I get it.

And in the end, that’s what I’ve wanted to see from the Supreme Court but have largely failed to find for so long. I want justices who will, on occasion, surprise us. The system was designed in a way that there would be a final set of arbiters who will decide what is or is not constitutional. And we need to know that presidents will appoint people who will seek the truth regardless of which way the political winds are blowing. I want them to be able to reach a finding based on a vast body of knowledge even if it outrages an army of people whose formal education on the complexities of constitutional law probably doesn’t extend much past their 11th grade civics class.

And since I can already hear the screams erupting over that last paragraph, let me put the following question to you. Public polling on not only several aspects of Obamacare, but of many other high profile, controversial cases, frequently shows a closely divided nation. Tens of millions of Americans may agree with you on a particular issue, but tens of millions of others may think you’re nuts. Are you really so sure in your constitutional scholarship as to say that in each and every case you are right and they are a bunch of idiots? The level of puffery required for that sort of attitude defies description. Unfortunately we currently seem to have four liberals and three conservatives on the court who fail to meet that test. And it’s sad.

What I dream of is a court where the justices will approach each decision with open ears and eyes in addition to open mouths. Where they will be able to set aside their partisan, ideological starting points and listen to opinions which may initially seem repellant to them. And then debate those issues vigorously, leaving room to find a consensus which doesn’t result in one vote after another “along party lines.”

I think Justice Roberts did everyone a favor… most specifically the Supreme Court. But at the same time, the reaction to his decision will likely make presidents from both parties even more gun shy about nominating anyone who isn’t a hard line, doctrinaire partisan in the future. And that’s sad. We need the courts. And we need them to be free from the shackles of politics and ideology.


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The kind of attitude displayed in this post is exactly why the liberals have been doing so well in the court. The liberals have four justices that are bound by “shackles of politics and ideology,” and we need as many of our own as we can get in order to even stand a chance in court.

If the court consists of 4 hardcore liberals, and 5 squishy conservatives who have, say, a 50% chance of delivering a conservative opinion in any given case, then we’ll hardly win any cases.

I’m sure Jazz is feeling good about himself for writing a piece that makes him seem apolitical and above the fray, but if we were to actually implement the ideas he suggests, it would mean permanently ceding one third of the federal government to the leftists.

Mr. Prodigy on June 30, 2012 at 12:49 PM

Robert’s also screwed Mitt Romney’s campaign. He handed the democrats more talking points. I can’t believe the level of self delusion among republicans. It’s obvious that “Conservatives” get it, they have been stabbed in the back by a Bush appointee.

Dr Evil on June 30, 2012 at 12:50 PM

MJBrutus on June 30, 2012 at 11:25 AM
I thought you hated and ridiculed 9-9-9?

txmomof6 on June 30, 2012 at 12:50 PM

Resolved: The government cannot make you eat broccoli, though it may levy a non-broccoli-eating tax on any who refuse.

anotherJoe on June 30, 2012 at 12:52 PM

What we learned was that Roberts will cave when the pressure is high. The leftists will remember this.

McDuck on June 30, 2012 at 10:06 AM

Indeed. The Left today follows Saul Alinsky’s philosophical school of politics. Victory is all that matters, an act of moderation is a revelation of weakness, and compromise is something for your enemies to do.

The failure by many in the Republican party and commentariat to understand the philosophical, strategic, and tactical shifts that have taken place in the Democrat party over the last 20-30 years (away from the patriotic technocracy of JFK and back to the radical Progressivism of Wilson, a shift catalyzed by Reagan’s presidency) is one of the major fetters of the contemporary Conservative movement and moment.

Harpazo on June 30, 2012 at 10:37 AM

Roberts is being painfully naive in thinking that this earns him the respect of the democratics. They now see him as a mark, someone that can be intimidated and bushwhacked into bending the law to suit them. They know now what tactics work, and it means that they will double down on those tactics the next time they are needed.

slickwillie2001 on June 30, 2012 at 12:53 PM

It’s obvious that “Conservatives” get it, they have been stabbed in the back by a Bush appointee.

Dr Evil on June 30, 2012 at 12:50 PM

Roberts is far more a product of Harvard law school and professors like Laurence Tribe than he is a product of George Bush. We should be wary of ever putting a Harvard trained lawyer on the Bench.

txmomof6 on June 30, 2012 at 12:53 PM

All this angst is just sound and fury signifying nothing, unless we act. We have to win in November. We have to repeal ObamaCare. If we don’t want the government to have the power to tax our inactivity then we take it away from the government the only way citizens can, Amending the Constitution.

txmomof6 on June 30, 2012 at 12:58 PM

The Republican party is indeed the party of stupid, as another commenter pointed out. Doubly so because they by and large know the proper, constitutional path the country should be taking but are too weak to fight for it. They say that Roberts lives on a different plane than us little people with our petty little political considerations. First of all, Roberts lives in no such place and is in reality just another person with a job to do — apply the letter of the law to disputed political issues — a job that he has in this past week done exceptionally poorly. But more to the point, this cop out that our “betters” such as Roberts somehow are divining things beyond the ken of the great unwashed is really just a cop out to explain away Roberts’ flat out weakness in trying to shield “his” Supreme Court from mainstream media criticism. Strong, smart people fight for their beliefs and take the heat willingly. Weak, stupid people run from it. What Krauthammer calls “finesse” on the part of Roberts I call a cowardly dodge. The Republican party is the party of weak and stupid.

csmats on June 30, 2012 at 12:58 PM

AZfederalist on June 30, 2012 at 12:49 PM

Amen. Another analogy would be to ignore all the rockets Hamas sends into Israel because they have built schools and charities for Muslim kids in the past. .

jawkneemusic on June 30, 2012 at 12:59 PM

txmomof6 on June 30, 2012 at 12:58 PM

We’re right with you on all those points ma’am.

AZfederalist on June 30, 2012 at 1:11 PM

If I ever reach the point where I think the voice of our vote is powerless I might as well take to my bed and stay there for my remaining days.

Flora Duh on June 30, 2012 at 9:42 AM

So your fire to do something about it extends up to the point of actually risking something – but then straight to bed.

The founding fathers would be proud.

Midas on June 30, 2012 at 1:18 PM

I think Justice Roberts did everyone a favor… most specifically the Supreme Court. But at the same time, the reaction to his decision will likely make presidents from both parties even more gun shy about nominating anyone who isn’t a hard line, doctrinaire partisan in the future. And that’s sad. We need the courts. And we need them to be free from the shackles of politics and ideology.

We need them to be able to read a reasonably simple document and understand it. This was obviously not done in this case.

The point is that we shouldn’t have surprises. Everybody should be able to read the document and know the outcome. If the result is counter-intuitive (think Roe vs. Wade), then there is a problem.

It doesn’t take “puffery” to know that something cannot be a “tax” for some purposes and “not a tax” for others. It doesn’t take “puffery” to know that this is not a tax, but a mandate. It doesn’t take “puffery” to know that Health Care is not mentioned in the Constitution and that the law should have been overturned completely. It doesn’t take “puffery” to know that The American Revolution was started over a less onerous “tax” system than this one.

The truth is the truth and logic is logic. And the Supreme Court was on the wrong side of both this time. Justice Roberts should be taken out and tarred and feathered.

Theophile on June 30, 2012 at 1:25 PM

Midas, cheap shot, not necessary.

Bmore on June 30, 2012 at 1:25 PM

A blast from the past: Ann Coulter, July 27, 2005: FOOL ME EIGHT TIMES, SHAME ON ME. Establishment Republicans despise her, but she’s the one that was right.

David Blue on June 30, 2012 at 1:31 PM

What I dream of is a court where the justices will approach each decision with open ears and eyes in addition to open mouths. Where they will be able to set aside their partisan, ideological starting points and listen to opinions which may initially seem repellant to them. And then debate those issues vigorously, leaving room to find a consensus which doesn’t result in one vote after another “along party lines.”

You don’t need to dream Jazz, you already have such a court. It’s the whole problem with our judicial system today. What we need is not for justices to be “open” but closed. Closed to the idea that anything except the law itself should dictate what the ruling of the case should be. The reason we have vote after vote, at least in the “big” cases, along party lines is do to that openness. Justices are open to any idea, no matter how tenuous it’s legitimacy based on the law or even common sense, which will help them get the conclusion they desire instead of the conclusion the law demands.

Could any piece of law be more clear than the 2nd amendment? Why was there an issue at all based on the law? Yet we had decades upon decades of decisions and laws usurping that right, in some places completely.

Look at Roe V. Wade. Is there any court ruling that has ever been based on such ridiculous reasoning? There is no basis for Roe v. Wade in the law.

Today we have “gay marriage” working it’s way through the system. Does anyone really think there is a basis in EXISTING law for redefining marriage by judicial fiat? Why aren’t these cases being summarily thrown out left and right?

The truth of this is based in the fact we have so many cases which are 9-0, 8-1, 7-2. Why are these cases so easy? Why is any case with such an obvious conclusion even reaching the Supreme Court? Usually it’s because that, even though obvious, it’s novel so lower courts flounder with what to do. Other times it’s rampant activism by lower court judges which the Supreme Court tamps down. In either case we have such definitive decisions is because the case isn’t a “big” one.

The real problem with this openness is not the outcome of whatever particular case which was decided but the faulty reasoning used and the precedent it sets down which can be used as the basis for multitudes of bad cases. The problem with Roberts ruling is not that he found for Obamacare, that can’t be repealed with a simple majority & a new President. But with his tax/not tax on inactivity. Liberal lawyers everywhere must have had an orgasm when they read that contemplating the possibilities.

The reason we have such “openness” now is the total abandonment by lawmakers, left and right, of the amendment process. How many amendments did we have in the 1st 150 years of our country? How many since? Virtually all those later ones don’t even have any significant impact on the daily lives of Americans.

What we need is not “open” justices, but closed ones. So closed that they will look at the law and say “You know I realize this is what everyone wants.That this is “good”. But my hands are tied. The law is the law. I must rule this way. If you want me to rule if your favor in a later case on this you need to provide me with the law to do it with. Otherwise, I am powerless.”

The problem we have is that too many judges, all across the political spectrum, believe their power derives from their ability to interpret law the rather than from the law itself.

Rocks on June 30, 2012 at 1:32 PM

Roberts is being painfully naive in thinking that this earns him the respect of the democratics. They now see him as a mark, someone that can be intimidated and bushwhacked into bending the law to suit them. They know now what tactics work, and it means that they will double down on those tactics the next time they are needed.

slickwillie2001 on June 30, 2012 at 12:53 PM

Yep, this is it in a nutshell and this is what the GOP refuses to acknowledge. Here we go again with so-called “conservatives” playing all equivocal and mushy on this serious issue; it means only that deep down, they are absolutely terrified that the bullseye not be painted on their backs. I’m certain the Left has been laughing up their sleeves since Thursday over it; they probably can’t believe their good luck that it happened so easily.

Roberts has been played big time, no question about it.

PatriotGal2257 on June 30, 2012 at 1:38 PM

I’m sure Jazz is feeling good about himself for writing a piece that makes him seem apolitical and above the fray, but if we were to actually implement the ideas he suggests, it would mean permanently ceding one third of the federal government to the leftists.

Mr. Prodigy on June 30, 2012 at 12:49 PM

Wait till that not a Penalty sometime’s it’s a tax, created out of John Robert’s imagination, hit’s Jazz in his wallet.

This isn’t an intellectual exercise. This is going to have real ramifications for real people, lots, and lots of real people. I am hardly impressed with Jazz Shaw’s approach to writing about what amounts to an abuse of power by all three branches of the United States Government. The Federal Government has become hostile to the citizens of the United States of America.

John Robert’s : ‘It’s not our
job to protect the people from the consequences of their political choices.
Robert’s decision might as well have been, I re wrote this unconstitutional piece of crap (And no I have no power to do so) because you don’t deserve the liberty the United States Constitution blessed you all with. John Robert’s “I hate Americans, I truly do, now you can suck on it”. Right back at you Judge Dread Roberts.

Dr Evil on June 30, 2012 at 1:38 PM

Roberts is far more a product of Harvard law school and professors like Laurence Tribe than he is a product of George Bush. We should be wary of ever putting a Harvard trained lawyer on the Bench.

txmomof6 on June 30, 2012 at 12:53 PM

The proggies think long-term, like the islamists in Europe. They have essentially taken over K-12 and most colleges, and it means that regardless who is making the appointments, conservative judges will be hard to come by.

slickwillie2001 on June 30, 2012 at 1:38 PM

Simple question for the Roberts apologists. What would Rehnquist, the guy Roberts replaced, have done?

I have little doubt he would have sent Obamacare back to Congress with a lecture about the Constitution, telling them they need to rewrite this thing if they want to make it the law of the land.

farsighted on June 30, 2012 at 1:42 PM

The thing to worry about Roberts now is he will spend his career defending the reasoning he used in this case. You can pretty much count on the fact that from now on any case touching on tax law will find Roberts voting the position which upholds his reasoning here. He basically has no alternative. Any liberal justice that can bring his reasoning to bear on a case, even if it’s tie to taxes is flimsy, will be able to count on Roberts vote.

Rocks on June 30, 2012 at 1:47 PM

Tens of millions of Americans may agree with you on a particular issue, but tens of millions of others may think you’re nuts.

This is what I think every time I hear a nutty liberal.

I disagree on Krauthammer’s assessment as he gives no play to the idea that ruling in favor of the left could also be seen as partisan and political because, oh, guess what? That’s how I see what Roberts did and so, what, my opinion isn’t valid because I’m not a stinkin’ sanctimonious liberal? Why do their selfish, self-serving, economy, freedom and country-destroying wants hold more validity?

I still can’t wrap my logical mind around Roberts’ opinion–we’d be having so totally a different conversation had he ruled the other way. I agree that we can’t be leaving things up to the Supreme Court. We need to pass better legislation and we need to insist on having better legislation passed–and let’s face it, ObamascareTAX was written and passed rammed down our throats in the most corrupt, insidious, ignorant and underhanded ways.

Maybe Bush should have sent the campaign finance legislation back to Congress to be fixed. His signing it while knowing it was flawed was lazy and irresponsible. I want a president who will embody excellence and perfection and demand it from those around him. And I want Supreme Court Justices who will do the same, but Roberts took the lazy and irresponsible way out because he seemingly was too concerned with opinions and legacies. If Roberts can’t take the pressure, then maybe he’s not cut out to be the Chief Justice.

stukinIL4now on June 30, 2012 at 1:47 PM

This entire article is crap. If I had the time I’d go through paragraph by paragraph and rebut the points made.

Let me just say that it is liberal in its concept. If the constitution can mean anything, then it means nothing.

If people who are not constitutional scholars cannot criticize the court, then people who are not software engineers cannot criticize Microsoft, people who are not network engineers cannot criticize AT&T, people who are not electronics engineers cannot criticize Apple, and so on.

Get a clue, Jazz.

jaime on June 30, 2012 at 1:56 PM

Rocks says it all here. There is far, far, far less to all of this than most seem to think.

Once you’ve crossed the rubicon and are in territory where plain language is turned upside down, where institutional roles are ignored and illegitimate powers usurped or invented – all bets are off.

Of course it has nothing at all to do with “ideology” or “partisan” behavior. The post above is silly, but typical. We have two political branches, subject to elections and the furies of public opinion. The SCOTUS was not designed to be one more mini-super-legislature. When it acts like one (Roberts’ ruling here is perhaps the most egregious and indefensible example in recent history), it leads to perverse and pernicious outcomes for all.

The problem with Roberts ruling is not that he found for Obamacare, that can’t be repealed with a simple majority & a new President. But with his tax/not tax on inactivity.

Exactly, Rocks. Roberts jaw-droppingly poor reasoning – oh hell, it wasn’t “reasoning”, it was just baseless assertion, that something clearly (by plain language and congressional intent, amply illustrated in the odious record) intended as a penalty “could be read” as a tax. Nonsense.

But it gets worse. In rewriting the law (every bit as much as a committee mark-up or floor amendment would do), Roberts invented an insane new taxing power, that of taxing inactivity.

Still waiting for the tax law geeks to weigh in here – federal tax law is fairly simple and well-developed with regard to the types of taxes that can be levied. This area even has its very own constitutional amendment. Roberts can beclown himself and (further) degrade the court’s credibility and integrity – but can he get away with this without any more fight? Can’t suit be brought against implementation of this made-up “tax” on various well-established grounds arising from the fact this “tax” does not conform to existing federal authorities?

One general – and very invidious – point here. There is nothing “partisan” about a decision that is well founded in substance, logic, reasoning, and precedent. Look at the dissent in this case. Then look at the mush from Roberts’ little group of pathetic and rather dim lefty drones. Do the same (look at the drones’ “opinions”) in other cases. You have one group basing their opinions in law, logic, plain language, and precedent. You have another doing absurd reverse-engineering in almost every case, just twisting themselves and the law into a pretzel to get to an obviously politically/ideologically determined end-point.

A reminder of how bad things really are. For those cheering Kennedy’s (atypical) common sense performance here, look back at the atrocity he performed in the Hamdan case, wherein under his leadership the court usurped the treaty power, rewrote the Geneva Conventions (in a literally unbelievable way, saying “up” means “down”), and screwed up the military commission process even further. Note that in the dissent, our own little genius Roberts used language not seen since Civil War days, about how the ridiculous “bait and switch” behavior of the SCOTUS in giving a cooperative Congress constantly shifting goal posts, as it tried to craft acceptable guidelines for the trials of the GWOT defendants, threatened to undermine our very system. Uh – John, what you just did achieved, in another area of the constitution, precisely the same point.

IceCold on June 30, 2012 at 2:14 PM

11th grade? You really had to go there?

I’m not reading jazz’s tripe anymore. It’s a waste of time.

Bye bye, jazz.

wolly4321 on June 30, 2012 at 12:01 PM

I’m with you . WTH is this Jazz guy to insult 1/2 of HA like that? Is he a famous lawyer?

What I’m seeing is the conservative lawyers I know of with a history of litigating are pretty upset about this decision; That would include Hugh Hewitt, Mike Lee, Mark Levin, Michelle Bachman, all the legal teams from all the states that brought suit.OH and ALito,Thomas,Kenedy and Scalia (those 11th graders) Also, my favorite commentariat are stunned, stumped and upset. That includes; Rush Limbaugh, Jonah Goldberg, Mark Steyn and many more. Krauthhammer was a trained psychiatrist and then a Mondale(D) speech writer. He was never a lawyer and has never litigated a thing.

BoxHead1 on June 30, 2012 at 2:16 PM

Republicans are desperately trying to convince themselves that Roberts will be different because they want to believe Bush wouldn’t let us down on the Supreme Court. Somewhere in America a woman is desperately trying to convince herself that her husband won’t hit her again because he told her “things are going to be different this time.” (And yes, that woman’s name is Whitney Houston.)

From Ann Coulter’s 2005 article linked above. It is soooooo on the money.

Jazz, you are just like the woman in Ann Coulter’s quote. It isn’t different and it will never be different as long as people like you try to justify the continuing abuse which the government heaps upon us.

Theophile on June 30, 2012 at 2:16 PM

Krauthhammer was a trained psychiatrist and then a Mondale(D) speech writer. He was never a lawyer and has never litigated a thing.

What gives him the right to comment, Jazz?

BoxHead1 on June 30, 2012 at 2:21 PM

Roberts was very concerned about upsetting the libs, lefties, Dems, and the MSM — concerned they may say nasty bad things about his Supreme Court and undermine respect for his Supreme Court.

About the reaction of people on the right, the ones who elected the guy who appointed him Chief Justice, the ones who voted against the guys who rammed Obamacare down the throats of the American people, not so much.

We don’t really know what’s best for us anyway. Nor do we understand how government is supposed to work. But the Dems that wrote and passed Obamacare, they understand. And where they made what Roberts considered a minor mistake, he fixed it for them. He was so nice to them they are saying nice things about him. Besides that, his apologists on the right are defending his honor and wagging their fingers at the great unwashed right-of-center masses.

farsighted on June 30, 2012 at 2:32 PM

With due respect Jazz,

For me the point is that our constitution does not allow the federal government to seize 1/7 of our economy and manage it as they see fit.

You are foolish not to recognize the incremental march to totalitarianism and every decision is an attack on human freedom.

THINK DEATH PANELS!

No Chop Charlie on June 30, 2012 at 3:03 PM

The GOP establishment, which includes Roberts, did not want Obamacare as a whole or the mandate declared unconstitutional. That would have energized Obama’s base, and allowed him to use SCOTUS as a rallying point to run against. Plus, the GOP would have been forced to explain what they were going to do to fix a broken bill, several of whose provisions are popular, but which are unworkable without the mandate.

The rest is as the conservative pundits explicate.

Problem is, all that is outside Roberts’s job description.

Mr. Arkadin

Not only is it outside his job description, it’s a silly argument that folks like Kraut and company make time and time again…..that we have to lose, otherwise the democrats will be motivated to win. I guess by their logic, we need to lose in 2012, otherwise the dems will be motivated to win in 2014 and 2016.

Meanwhile, now Obama gets to use Mitt’s threats to repeal Obamacare as a rallying cry for his base, AND Obamacare is the law of the land to boot.

xblade on June 30, 2012 at 3:09 PM

One point I have been trying to make – with an astonishing lack of success – for some time now is the growing sense of dread I feel over appointments to the Supreme Court.

Who are you trying to convince? Your parrot? We already know what is going on with the court, perhaps low information voters don’t but what else is new?

It’s Original Intent versus The Living Constitution: is the Constitution a document which limits Federal Power or is it a tool to be used by the Federal Government to advance “Social Justice”? The court has been politicized since Roe V Wade and you can’t expect to be taken seriously if you don’t see the sheer activism in Roberts’ decision of rejecting the administration’s arguments over the mandate and then rewriting the statute as a tax to make it legal in his eyes. He acted like a King here where the Conservatives and Liberals disagreed over the constitutionality of the mandate, but agreed that it was not a tax and Roberts comes along and single handedly redefines the mandate as a tax. I heard someone refer to this as a 1-4-4 decision and that is exactly what it was.

If you like those sorts of surprises Jazz, then the court will continue to lose legitimacy because this decision is being laughed at even by those who celebrate it.

And the Stolen Valor act shouldn’t even be compared to what happened with Obamacare. We can accept the Stolen Valor decision, we can deal with the Arizona decision, but this is one of those tortured decisions Constitutional Law professors will struggle to explain for decades.

Daemonocracy on June 30, 2012 at 3:24 PM

For my money, the best analysis was from Krauthammer

This?:

Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.

But of course.

The Failure of Separation of Powers

The predominant Western model of governance assumes, incorrectly, that a “separation of powers” within the State will limit the State’s appetite for control. But rather than limit the State’s expansion, the State’s subsystems — the institutions of executive power, legislative power and judicial power — are competing to gain as much control as possible over both the State itself and the nation’s social and financial systems.

This competition doesn’t weaken or limit the State; rather, it lends the State a fearsome competitive advantage, as each institution gains power as the State expands. So even though the competition between the three may appear to limit the power of each, in aggregate this competition only increases the State’s expansion as each seeks to outdo the others in reach, influence, and power.

“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”
–Lysander Spooner

Rae on June 30, 2012 at 3:32 PM

From what I gather and could be wrong as I am not a constitutional scholar, but this should have gone down 9-0 if it were ruled according to the constitution.

So what we have here, in a nutshell, is a bunch of judges who aren’t interpreting the constitution and that isn’t a left/right fail, but perhaps an educational and judicial one.

kim roy on June 30, 2012 at 4:02 PM

If I ever reach the point where I think the voice of our vote is powerless I might as well take to my bed and stay there for my remaining days.

Flora Duh on June 30, 2012 at 9:42 AM

So your fire to do something about it extends up to the point of actually risking something – but then straight to bed.

The founding fathers would be proud.

Midas on June 30, 2012 at 1:18 PM

That isn’t what she said. Really can’t see how you got to your response.

kim roy on June 30, 2012 at 4:05 PM

Oh, Jazz…why do you keep embarrassing yourself and everybody else in this way?

Dunedainn on June 30, 2012 at 4:09 PM

Anybody read how The Hill now is trying to make it news that vulnerable Republicans are backing the repeal vote–as if basically all Republicans, including the entrenched leadership and non-vulnerable Reps–don’t oppose the ObamascareTAX. I’m sure the vulnerable Dooms in the House (& Senate) even more don’t want to have go on record either way–voting to re-affirm the biggest tax increase ever or voting against their deadbeat president, ditzy House leader and obstructionist Senate leader.

stukinIL4now on June 30, 2012 at 4:25 PM

Screw Shaw and Screw Roberts. This was unconstitutional and it was plain to see.

CW on June 30, 2012 at 4:41 PM

Roberts threw the Obamacare ball back into congress & the people…
….
workingclass artist on June 30, 2012 at 9:00 AM

And that was not his job. He failed and should be fired.

CW on June 30, 2012 at 4:43 PM

The system was originally designed in the 1780′s to achieve a balance between three co-equal branches of government. The Court as the supreme arbiter was not by design but by evolution: the first significant example being Marbury vs. Madison, whereby the court (Justice Marshall) managed to assert its right to be the sole arbiter of what is constitutional. (Jefferson disagreed with Marshall’s ruling.) From there, especially from the Progressive Era on, the court bit by bit, decision by decision, asserted its power and supremacy over the other two “co-equal” branches.

The court is now regarded by Liberals as the Vatican of its secular religion, with the Chief Justice accorded the same awe and respect that devout Roman Catholics accord to the Pope.

Scriptor on June 30, 2012 at 11:19 AM

They are still not the final arbiter. States have the right of nullification and can refuse to enforce unconstitutional law. The people are the final arbiter.

Dante on June 30, 2012 at 4:45 PM

Jazz makes a perfect Beltway “conservative”. I am stupefied by his “reasoning”. Roberts did not apply conservative constitutional analysis. Hhe re-wrote the statute at issue to arrive at the result. He has opened the floodgates to judicial activism on the Left.

wraithby on June 30, 2012 at 5:05 PM

Scalia was always my favorite justice. Particularly in dissent, he intellectually shreds his opponents viewpoints. Roberts just may be my favorite now. What he pulled on the liberals is diabolical. In a year’s time, I think that we will realize that his strategy was brilliant and cunning.

I would have preferred that Obamacare was just killed outright, but in truth, it would have given the Democrats a huge issue to rally the troops. Another case where 5 unelected people overruled the will of the people expressed through their elected representatives. It would also make it unnecessary to kick Obama out of office to repeal the horrid thing, since SCOTUS would have already done the dirty work, and taken the heat for the effort.

Instead, with the court split 4-4, he originally sides with the conservatives to kill the thing, with Ginsberg writing the dissent. Then at the last moment, he discovers that there is actually a constitutional method of accomplishing the individual mandate. Congress could have passed a tax on everyone, with an exemption for those who have health insurance. It would functionally amount to the same thing. He switches sides, and as the senior Justice he writes the opinion, Ginsburg’s dissent becomes a concurrence.

It is remarkable what that accomplished. With him writing the opinion for the liberal wing, conservatives won on every Constitutional issue, even one that would have been mute had the law been overturned.

1. Commerce clause is limited, Congress may not compel, coerce or create commerce in order to regulate it.
2. Necessary and Proper only applies to what is necessary and proper to apply the directly enumerated powers, not necessary and proper to achieve any legislative goal a Congress may have.
3. Federal Government cannot threaten current funding for programs to coerce agreement from the States on future programs, it runs contrary to the concept of Federalism. This question could not have been addressed if Obamacare was overturned, it would have been mute.
4. Obamacare stands, but not on the basis Obama would have wanted. It is a tax, and Obama maintained that it wasn’t. He also made numerous promises not to raise taxes on the middle class.
5. Because Obamacare is built around a tax, the filibuster can’t be used to prevent an attempt to repeal. Roberts may not have killed it, but he made it a lot easier for Republicans to kill on their own.
6. The 2012 elections are now going to be a referendum on a very unpopular law. The original passage of Obamacare cost Democrats 60 seats and control of the House in the 2010 midterms. In 2012, the Democrats have to defend 16 seats in the Senate against 5 for the Republicans.

I believe that this last point was an important consideration for Roberts. He really doesn’t like umpires deciding games, and he doesn’t like SCOTUS being used to settle political/policy issues. He answered the legal questions, conservatives won across the board. As for the political issues of Obamacare, that’s what elections are for, and there is one coming up.

In the opinion, Roberts stated “It is not the role of the Court to protect the people from the consequences of their political decisions”, he might have added “nor is it the courts role to protect politicians from the people when they pass unpopular legislation.” He decided to let the law stand, and the American people rule on it’s ultimate fate – which is just how a democracy should work.

HoosierHawk on June 30, 2012 at 5:14 PM

1. The duty of the Supreme Court is, by self appointment, to interpret the Constitution. Article 5 of the Constitution contains two different methods whereby the people of the U.S. can amend it. Neither of those two methods allows for unilateral amendment by unelected judges. And when they do, as Roberts has done here, amend the Constitution by fiat, they become a super-politburo, not a seperate and equal branch of government.

2. Looking at the taxing power of Congress as set forth in Art. I Sec. 8 and the 16th Amendment, the purpose of the taxing power was to raise revenue. That is far removed from the purpose the mandate recast as a tax. The decision by Roberts grants the government powers they never dreamed they could exercise. Imagine Bloomberg on a national level with the power to use taxes to force behavior. Imagine Henry Waxman and Crazy Nancy with the power to use the taxing power to force compliance with every single one of their green schemes.

3. Never another Roberts. The right has been cowed to the point of nominating people without an extensive record of originalism since the dark dark days of what Biden and Kennedy did to Bork, meanwhile, the left feels free to nominate the most radical of justices – aka, Ginsburg et al, to the Court. Horse manure. Every justice nominated by a Republican should, at this point, have a long record of fidelity to orignalism at least equal to that of Thomas and Scalia.

4. Although originalism as opposed to the “living Constitution” theory is cast as left versus right, it isn’t. Judicially amending the Constitution in favor of a conservative cause is as abhorrent as doing so in favor of the latest leftie cause celebre. Thus, I am not upset at all by the Stolen Valor decision, while I consider what Roberts has done to the U.S. in this latest atrocity to be unforgivable.

5. If the Supreme Court – and Courts generally – feel free to engage in amending the Constitution by fiat (countless cases over the past 80 years) or deciding social issues that should be solely in the domain of the electorate (Roe, Perry – the gay marriage case, etc., etc.), then I stand with Gingrich. The entire system needs to be remade.

Wolf Howling on June 30, 2012 at 5:24 PM

I agree with most that it is rank stupidity to get all “bipartisan” on the court on our side! The liberals will NEVER EVER EVER vote against the liberal line. What we need to do is double down on vetting of our candidates for SCOTUS. NO MORE like Roberts (remember Ann Coulter said at the time we new nothing about him and that usually bode bad for us). NO more Harvard grads–in fact no more Harvard grads for anything in govt–they are far too ingrown liberal. Roberts is a traitor–I hope he enjoys all the pats on the back and the thrills up Hardball’s leg! He is delighted to be in the in crowd now. That is the only explanation I can come to.

AnnaS on June 30, 2012 at 5:37 PM

As Mark Levin correctly noted, Roberts musings on the limits of the commerce clause were not joined in by the Leftist members of the Court. They will turn around, on the very next case that is ripe for commerce clause activism, and renew their CC activism. Now Roberts has given them an undefined “taxing power” to augment the weopons in their activist armory.

wraithby on June 30, 2012 at 5:40 PM

Hoosier Hawk:

You miss a couple of key points. Everything Roberts said about the Commerce Clause and the Necessary and Proper clause is pure dicta. It was not necessary to decide those issues to decide the case, and thus it is not precedent. It is not binding on any Court in the nation, nor in future Supreme Court cases.

Two, Roberts vastly expanded the power of the Supreme Court to rewrite legislation, as well as making a nullity of Congress’s decision not to include a severability clause. That is not the work of someone merely acting out of judicial deference, it is activism.

Roberts just made the taxing power unlimited. It need not be remotely tied to raising revenue. It can be used to tax inactivity or all but government approved activity. You don’t even have to have money to have the tax imposed upon you, so it is wholly uncoupled from revenue. Roberts has created a Frankenstein’s monster on steroids. Anybody that thinks Roberts did our Constitutional form of government any favors is basking in Polyanna’s rainbows.

Wolf Howling on June 30, 2012 at 5:40 PM

This article is a good example of Hot Air standing athwart history yelling…

Please slow down a bit, if you don’t mind. Pretty please with sugar on top.

Reggie1971 on June 30, 2012 at 5:41 PM

Well Jazz, it’s establishment RINO’s like you that are the problem with the Republican party. We need to ignore preposterous pap like you spew and learn to fight like Democrats.

Old eagle on June 30, 2012 at 5:49 PM

The more I think about this “article”, the more I abhor it.

Thank you, Jazz; you just cut down my daily Hot Air reading time by about a third since I will now be skipping nearly every “article” with your name underneath the title. Hopefully this move will return Hot Air to its previously consistent high level quality of analysis.

Theophile on June 30, 2012 at 5:49 PM

As Mark Levin correctly noted, Roberts musings on the limits of the commerce clause were not joined in by the Leftist members of the Court. They will turn around, on the very next case that is ripe for commerce clause activism, and renew their CC activism. Now Roberts has given them an undefined “taxing power” to augment the weopons in their activist armory.

wraithby on June 30, 2012 at 5:40 PM

Levin is wrong – what they Left says does not affect the effects of this decision on 0bamaCare, which was the case in front of the SC.

Roberts voted to uphold 0bamaCare as a tax, and voted against it on CC grounds – either the Left takes his vote on his terms, meaning it now is legally/Constitutionally a tax, or they reject 0bamaCare as a tax, meaning that they lost the vote to uphold 0bamaCare on CC grounds, 4-5.

Roberts is the decider here, and the Left isn’t going to like it when they finally figure this out fully!

Bizarro No. 1 on June 30, 2012 at 5:51 PM

Jaxx is a midget.

What Roberts did is a disaster.

That anyone would expect Romney to undo it is pure folly.

sartana on June 30, 2012 at 5:55 PM

Bizarro No. 1 on June 30, 2012 at 5:51 PM

Is Obamacare Constitional or not? That is the question.

Reggie1971 on June 30, 2012 at 5:58 PM

Constitutional I mean.

Reggie1971 on June 30, 2012 at 5:59 PM

wraithby on June 30, 2012 at 5:40 PM

The summation of my last post: 0bamaCare wins 5-4 as a tax, or loses 4-5 as a CC exercise.

Which route does the Left prefer, in your opinion, and do you believe the route they prefer will make them happy in the end? :)

Bizarro No. 1 on June 30, 2012 at 6:00 PM

Is Obamacare Constitional or not? That is the question.

Reggie1971 on June 30, 2012 at 5:58 PM

I disagree, but only because I believe you forgot to ask another important question.

1) I can’t say that I believe the decision was Constitutional. But…

2) on a practical level at the present moment in time, it doesn’t matter what you, I, or anyone else may believe about it on Constitutional grounds, it now is the the law of the land, and that hurts the Left no matter how you look at it…

Bizarro No. 1 on June 30, 2012 at 6:05 PM

Bull shit (to Jazz’s conclusion). Robert’s shirked his duty to defend the Constitution.

WannabeAnglican on June 30, 2012 at 6:14 PM

Bizarro No. 1 on June 30, 2012 at 6:05 PM

I’m sorry, but that was about as clear as mud. If conservatives now desire to play in long term political games with the Constitution, we will lose.

Reggie1971 on June 30, 2012 at 6:17 PM

Jazz: Partisanship was assumed upon the founding of the country. One party rule with differences only at the margins leads to what exactly?

A particular type of tyranny I would argue.

Difficultas_Est_Imperium on June 30, 2012 at 6:31 PM

I’m sorry, but that was about as clear as mud. If conservatives now desire to play in long term political games with the Constitution, we will lose.

Reggie1971 on June 30, 2012 at 6:17 PM

Then, let me try to help you (part of this will require your participation, as you’ll have to answer some questions which will help make one of my points!)

1) the outcome the Left hoped for, 0bamaCare being upheld on CC grounds, was rejected, correct?

2) practical, real-world outcome of that: Roberts threw 0bamaCare back into the political arena i.e. it now is going to voted on again: House vote set for July 11th.

We both know how that vote will go, so, then it’s going to the Senate, where, because of Roberts’ ruling, only 51 votes will be needed to repeal it, not 60. Sound good/fun so far? :)

3) I’m not sure if Reid can block such a vote, but, how much do you believe the Dems will look forward to having to explain themselves/their votes on 0bamaCare again?

As to what I said to you in my last post, I meant that even when the SC makes an unconstitutional decision, as it did with Roe vs. Wade for example, the decision becomes the law – 0bamaCare now is a tax, despite any Leftist denials/disputations of that…

Bizarro No. 1 on June 30, 2012 at 6:36 PM

Electing the “right” president has become an even larger battle across the nation because of the crushing necessity to have them appoint the “right” kind of justices to the court. But what does that mean? For far too many of us it means justices who will vote the way we want them to…

And why is that? Because Teddy Kennedy and the Democrats started “Borking” Conservative judicial nominees while the stupid Republicans are still using the old non political approach of approving rabid radical lefties in the Republican “Go along & Get along” operation.

Anyone else find it funny that justices never start left and move right, that’s because the Democrats play to win and if a judge fails the Democrat litmus those judges go no further.

With the number of years Republican Presidents have been in power and selecting justices we should rule the supreme court, instead Republicans are packing the court with big government leftists.

RJL on June 30, 2012 at 6:46 PM

Bizarro No. 1 on June 30, 2012 at 5:51 PM

The Left will in no way be constrained in their commerce clause activism by Roberts exercise in sophistry (Justice Scalia’s apt term).

Roberts attempt at Jesuitical reasoning will easily be distinguished by the Left Justices. They will distinguish the “inaction is not commerce” facts of the Obamacare case, and merrily continue their commerce clause activism. I predict they will also find ways to utilize Robert’s “taxing power” jurisprudence as well. All in all a very good day for the Left.

Levin made a technical point, regarding the status of Roberts’ opinion and whether it is an “opinion of the Court” as regards the commerce clause issue. I direct you to his Facebook page for his email.

Krauthammer and George Will have embarrassed themselves with their tortured attempts to resuscitate Robert’s credibility. Will effectively announced that a decision of five conservative justices cannot be controlling, unless the Left joins in. He felt that Roberts has opened up a dialog with the Left about the proper role of the federal government. This, he deems a victory. Establishment conservatives are playing Tball while the Left wages war!

wraithby on June 30, 2012 at 6:52 PM

Electing the “right” president has become an even larger battle across the nation because of the crushing necessity to have them appoint the “right” kind of justices to the court.

It was bad enough having Democrat activist justices creating bad liberal laws, now we have Republican appointed chief justice john “The Taxer ” roberts being a liberal judicial activist making bad laws for the liberals.

RJL on June 30, 2012 at 6:56 PM

Jazz may fancy himeself as apolitical, well congrats and good with with that. I know what comes from the right and the evil that comes from the left. Nobody is ever going to convince me otherwise. The left is sucking the life out of me and ultimately my children.

Apolicital…ha!

wsucoug on June 30, 2012 at 6:57 PM

Bizarro No. 1 on June 30, 2012 at 6:36 PM

IF the Left needs Roberts vote on an Obamacare related case in the future IF the case hinges on whether or not the Obabamcare mandate is a tax, then they will have to agree with him.

But only IF BOTH of those things happens. Those are very big ifs, because they no longer need Roberts vote. Obamacare and the mandate are now the law of the land.

The only scenario where this might occur is if the GOP repeals Obamacare using reconciliation using that the mandate is a tax as the legal basis.

If that happens the four libs will vote it is not a tax. Roberts will vote it is a tax. To uphold such a repeal all four of the dissenting justices would have to flip-flop on their previous vote. They all explicitly concurred in the dissent that Roberts is wrong, that the mandate as written in not a tax. Some may flip-flop. But would all four?

And if Obama is re-elected there is no chance a repeal on any basis will get through Congress.

farsighted on June 30, 2012 at 7:04 PM

I think Justice Roberts did everyone a favor… most specifically the Supreme Court.

By being a liberal judicial activist and rewriting the legislation, crossing out where it said “penalty” and inserting “taxes”???

No, chief justice john “The Taxer” roberts did no one a favor. This will be remembered right up there with justice harry blackmun’s right to kill babies “emanating from the penumbra of the Constitution”.

RJL on June 30, 2012 at 7:07 PM

Bizarro 1 and Hoosierhawk are catching on.

Roberts kicked the bad law back into the laps of the people made it. And now gives the Republicans what they claim they’ve wanted to do all along- repeal the law entirely. Will they? That is NOT Roberts’ job to do- it is yours.

Further, he did twist some thing around but in a way that will make Pelosi go from “Rah rah rah” to “WTF?” in about a minute. Now the thing the Dems wanted to hide with the mandate is staring them right in the face. A five hundred billion dollar tax in a country where we are one tax away from building guillotines. Imagine the Dems shock when they realize its a tax and enough say, “I didn’t know that. We can’t afford another tax in this recession, maybe we should pare it back to say kids on parents insurance till 26 and no pre-existing conditions?”

Futher, as pointed out, he took and set parameters around the commerce clause and that silly idea of mandates AND stopped the government from using fed funds to extort states. If he had roundly rejected the law he would not have been able to take those steps.

A risk? Maybe, but a brilliant one. Don’t think the conservatives judges,who were given the green-light to tell the nation what a piece of crap the law was in great detail, didn’t know what he did. Sometimes it is about judo vs. brute force. Give it till the vote and see what happens.

http://truthandcommonsense.com/2012/06/29/judge-roberts-gives-obama-a-chinese-curse-may-you-live-in-interesting-times-what-conservatives-missed-in-the-ruling/

archer52 on June 30, 2012 at 7:08 PM

The Left will in no way be constrained in their commerce clause activism by Roberts exercise in sophistry (Justice Scalia’s apt term).

Roberts attempt at Jesuitical reasoning will easily be distinguished by the Left Justices. They will distinguish the “inaction is not commerce” facts of the Obamacare case, and merrily continue their commerce clause activism. I predict they will also find ways to utilize Robert’s “taxing power” jurisprudence as well. All in all a very good day for the Left.

wraithby on June 30, 2012 at 6:52 PM

Agree. Unlike Roberts and his ilk in the GOP, the Left does not agonize over such technicalities (unless it benefits them) and the possibility they may be criticized and called nasty things for what they do. Look at how they concocted and passed Obamacare. All they care about is winning and in advancing towards their goals, using any means available. This approach has worked quite well for them for many decades.

farsighted on June 30, 2012 at 7:13 PM

In the opinion, Roberts stated “It is not the role of the Court to protect the people from the consequences of their political decisions”, he might have added “nor is it the courts role to protect politicians from the people when they pass unpopular legislation.” He decided to let the law stand, and the American people rule on it’s ultimate fate – which is just how a democracy should work.

HoosierHawk on June 30, 2012 at 5:14 PM

Frankly that is one of them most bizarre things in Roberts decision. YES it is the Court’s job to protect the people from the consequences of their political decisions. If this law had been a tax solely on people for being not black would he have said the same thing? Besides no one was asking that the law be set aside because it might be disastrous. They asked for it to be set aside because it’s unconstitutional. Or at least it was till Roberts decided by himself that it’s a tax and that it’s been abundantly clear, since America’s founding yet, that Congress’ power to tax is without limit.

Rocks on June 30, 2012 at 7:23 PM

Roberts kicked the bad law back into the laps of the people made it.

archer52 on June 30, 2012 at 7:08 PM

No. He did not. He upheld it and affirmed it as the law of the land.

The people that made it do not have to do anything other than what they have been doing all along. Buying time to enable it take root, entrench, and metastasize, while opposing and blocking all GOP efforts to get rid of it. Roberts gave them a helping hand, single-handedly destroying the most threatening method for killing the unconstitutional socialist cancer as early as possible. The Dems are thanking Roberts and betting that eventually the GOP will give up. It is a good bet. And if Obama is reelected it is all over.

That said, I hope I am wrong about this.

farsighted on June 30, 2012 at 7:24 PM

Bizarro No. 1 on June 30, 2012 at 6:36 PM

Honestly, I have no clue what makes you so happy here. There is nothing that says it takes 5 judges to exactly agree on everything for them to come to judgment. Merely not dissent. The 4 liberals agreeing the mandate is a tax means nothing. Ocare was passed by Reconciliation. As long as Republicans can show they can save money by repealing Ocare they can repeal it by reconciliation. No judgement from the Court was needed for that. As to the Commerce Clause & Necessary & Proper it matters little what they found. Neither of those clauses used to be considered anywhere as broad as they are now. The Court set new precedent in expanding them, just like Roberts did on taxes. 5 liberals will not be hindered by anything Roberts wrote in this case.

Rocks on June 30, 2012 at 7:42 PM

Jazz Shaw is a f**king moron!

HerneTheHunter on June 30, 2012 at 7:45 PM

I want them to be able to reach a finding based on a vast body of knowledge even if it outrages an army of people whose formal education on the complexities of constitutional law probably doesn’t extend much past their 11th grade civics class.

The problem is that even those with a vast body of knowledge can make errors in reasoning or base their decisions on unstated assumptions. In this case, Roberts assumed that if a mandate’s penalty can be construed as a tax falling under the Tax Clause, then the mandate itself is constitutional. But this is a non sequitur. If Congress passes a mandate requiring us to convert to Zoroastrianism or pay a penalty that can be construed as a tax, it doesn’t follow that the mandate is constitutional. In fact, it is not, being a violation of the First Amendment.

Moreover, as Aquinas pointed out, a necessary characteristic of a law is that it be promulgated. The ACA does not treat the penalty as a tax, and so even if Roberts is correct that the penalty is actually a tax, the ACA has not been properly promulgated. It needs to be re-written to reflect that it is a tax. Otherwise, I don’t see why anyone is obligated to pay a tax that is not actually promulgated. On the other hand, if proponents of the ACA want to stick to the penalty language, I don’t see why anyone is obligated to pay the penalty, because the ACA as written wasn’t upheld. The only thing that was upheld was the ACA in Roberts’ mind.

Bill Ramey on June 30, 2012 at 7:55 PM

The ACA does not treat the penalty as a tax, and so even if Roberts is correct that the penalty is actually a tax, the ACA has not been properly promulgated. It needs to be re-written to reflect that it is a tax. Otherwise, I don’t see why anyone is obligated to pay a tax that is not actually promulgated. On the other hand, if proponents of the ACA want to stick to the penalty language, I don’t see why anyone is obligated to pay the penalty, because the ACA as written wasn’t upheld. The only thing that was upheld was the ACA in Roberts’ mind.
- Bill Ramey on June 30, 2012 at 7:55 PM

Just so, and this is one of the objections: Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito dissented and argued that because Congress characterized the payment as a penalty, to instead characterize it as a tax would amount to rewriting the Act. This is not just a verbal quibble: had the act be described before Congress as imposing a tax it probably would not have been passed.

This ruling by Roberts is hence just wrong and makes the act pass by a dishonest verbal cheat. I say shame on Roberts.

Chessplayer on June 30, 2012 at 8:22 PM

Jazz,

I’m an infrequent commenter but a very frequent reader. I’m also an attorney and an admitted member of The Federalist Society. I am writing to point out the glaring flaw in your thesis here.

Courts are not supposed to be concerned about public perception or opinion. In fact, they, especially federal courts with lifetime appointed judges, are specifically charged with a duty and legal authority designed to be completely inoculated against public opinion. “Doing the popular thing” or in any way whatsoever engineering a court opinion or decision in a way to adapt to or cater to anything other than the black and white letter of the law is exactly what we ‘strict constructionists’ fight every day against in the legal community.

It doesn’t matter if you are the Chief Justice of the United States Supreme Court or a lowly county judge in my home state of Florida, judicial decisions are supposed to be based on the law, nothing more, nothing less. The mere suggestion that Roberts did anything but hand down cold calculated legal justice absolutely discredits him in my eyes. While his ‘political calculation’ may ultimately be of ultimate benefit to conservatives (if and I mean a big if Romney is elected, the GOP takes the senate, and Obamacare is repealed in its entirety), that is not his role as a member of the judiciary!

It pains me to read about how people on our side of the political spectrum are straining to excuse this barren act of treason by an otherwise accomplished jurist. The way I see it, his decision to prop up Obamacare on what is an absolutely ridiculous legal argument is absolute proof that he is not and never was up to the job of becoming a Justice of the United States Supreme Court, let alone Chief Justice.

scorpio0679 on June 30, 2012 at 8:55 PM

The way I see it, his decision to prop up Obamacare on what is an absolutely ridiculous legal argument is absolute proof that he is not and never was up to the job of becoming a Justice of the United States Supreme Court, let alone Chief Justice.

scorpio0679 on June 30, 2012 at 8:55 PM

Call it- ROBERTS’ RULES OF DISORDER.

Legislating from the bench of the most outrageous sort.

profitsbeard on June 30, 2012 at 9:01 PM

Here’s the problem with your analysis: if Roberts is so fair-minded and such a great constitutional scholar and his decision was well-rooted in that, then that makes Kennedy, Scalia, Thomas and Alito either inferior justices or partisan hacks, because they vehemently thought it should be struck down. And on the other side, there was never any question the 4 stooges would vote to uphold. THAT’S the way the game is played now, and Roberts damn well knows it. He owed it to the people who supported him and appointed him to play it straight. He’s worried about his legacy. That’s the sum of it. He would have voted to continue the recount until Gore got a count he liked. He is a coward. I despise him.

babygiraffe on June 30, 2012 at 9:04 PM

Roberts’ apologists suggest that he had some sort of angle or “finesse” on his decision that will ultimately prove to be a win for conservatism, that Roberts is operating on some sort of elevated plane of legal brilliance beyond the understanding of mere mortals. Observers of all stripes, however, have yet to nail down any identifiable logic that would engineer such a win.

A more likely scenario than the “Super Judge” theory is that Roberts decided as he did to enhance his own standing among the Washington DC status-brokers, most prominently the MSM. Roberts is, after all, not some sort of super human, no one is. Roberts is certainly operating on a different plane than the rest of us, but it’s not the plane of legal super brilliance. Rather, it’s the plane of a man who rose to prominence within conservative circles but now no longer needs conservatism to further his ambition. The plane he’s on is the plane of not having to worry about his job anymore. So he alters his behavior to his circumstances. John Roberts as a self-interested human being is much more logical than John Roberts, “Super Judge.”

csmats on June 30, 2012 at 9:32 PM

My problem is that the Supreme Court seems to be ASSISTING the federal government in usurping power – allowing government greater reigns to control our lives. I hate to say this folks, but the Constitution that we know and love has ALREADY been broken. We’ve had socialized education for over sixty years. We’ve ALLOWED case law and precedent to hamper and constrict our rights. We’ve gotten to a stage where the only rights left to us are the ones enumerated in the constitution, rather than all of them except the ones we ALLOW to the government. I’m not advocating armed rebellion, but we need to start thinking about what we are going to do when this boat capsizes. When the food riots start and money is worthless, the libs will scream “Capitalism has failed us!” and the soft tyranny we live under will suddenly become a hard one. Chief Justice Roberts, for all of his fancy footwork, could have set back the Obama Administration, curbed federal expansion, and WHAT would Obama have done about it? The Constitution framed by our founding fathers has been gutted and it’s time to think about taking our country back.

eyesights on June 30, 2012 at 10:41 PM

…it’s been nice being gone all day and being able to catch up on every thread since there are not that many…the trolls haven’t been as active…and there’s some good posts!

KOOLAID2 on June 30, 2012 at 10:44 PM

Love that picture. Looks like Ginsburg is lifting up to toot one in their general direction.

Tennman on June 30, 2012 at 11:19 PM

Roberts in the Arizona case made it clear he is a Liberal now. This sealed his fate.

He will go down as an example of why Establishment Republicans make horrible Presidents. He may have well sealed a second term for Obama. He will make it harder for many to vote for a complete unknown commodity who Sarah Pallin can not even bring herself to endorse. Republican after Republican say they hope Romney will do the right thing but few in a way that makes others believe he will.

I would say Mitt will be the last Establishment Republican nominated. But all this really proves is that the nomination process is completely rigged so Establishment Candidates win no matter what. We just delude ourselves thinking we have some kind of choice when in reality we do not. The next President is chosen for us by a few very rich people. Money is why Mitt is the nominee. The voters said by up to 75% we do not want Mitt. But so what. The voters do not matter. Only the money matters. Newt and Rick were outspent 12 to 1 making lies into truth. It is the billionaires who choose our politicians. The people be damned.

Steveangell on July 1, 2012 at 12:27 AM

In simple terms, if Michelle Obama says all Americans must sign up for a fitness center and go at least twice/week. & it must cost at least $50.00/month.
So Barry says, hey, great idea, I’ll get that through Congress, no problem, & add if anyone doesn’t go, or their membership is less than $50.00/month, they’ll pay a tax.
If you’re overweight & lose 5 lbs/month, I’ll give you a tax credit. But if you gain 5 lbs/month, I’ll tax you more.
Is this a valid example of the monstrosity Roberts gave us?

Belle on July 1, 2012 at 12:33 AM

Roberts was pronounced everything from a traitor to a coward.

IMHO, the supporters of 0bama and Romney have earned those titles.

I would say Mitt will be the last Establishment Republican nominated.

Steveangell on July 1, 2012 at 12:27 AM

Shades of 2008, Angellman! I’ve heard that before.

The fault lays with the LAZY American voter whose lame excuses of being too ‘busy’ to do the research needed, let alone actually getting involved, causes us to be saddled with less than stellar candidates.

America ALWAYS gets the government it DESERVES.

DannoJyd on July 1, 2012 at 12:36 AM

America ALWAYS gets the government it DESERVES.

DannoJyd on July 1, 2012 at 12:36 AM

I agree.

What we deserve is a one way ticket to Hell.

America is becoming the most evil Country in the world.

GOD will not judge us well.

We absolutely deserve the punishment we will receive unless we wake up and repent.

Steveangell on July 1, 2012 at 12:41 AM

Steveangell: Newt Gingrich & Rick Santorum were also establishment candidates.
I did have hopes for Michelle Bachmann & Herman Cain.
I was sick when all those women rose up out of everywhere to blast Cain. I knew then we’d never get an independent thinker to run for President this year.

Agree we have a liberal court, & are stuck with it. Obama is feeling very good right now. Did you notice how quiet Mitt has been after this disastrous week? Set up to fail like McCain.

Belle on July 1, 2012 at 12:42 AM

Resolved: The government cannot make you eat broccoli, though it may levy a non-broccoli-eating tax on any who refuse.

anotherJoe on June 30, 2012 at 12:52 PM

Thanks Joe for what is a pithy summary of what Roberts and the idiot liberals have ruled – it has such logical dissonance that it makes you shake your head.

Around two years ago, I went back home to India after living and working for close to 10 years in the United States – easily the most cherished 10 years of my life so far.

When I was heading back home Scott Brown had won promising to be the 41st vote in the Senate against Obamacare and now two years on, not only has it survived but has also been deemed constitutional…. by some one no less than a supposedly conservative Chief Justice.

I have to agree with Mark Steyn, a fellow non-American who seems to love the country very deeply that there is something absolutely rotten in the state of America – a declining condition for which there seems to be no cure, care or …pardon me… insurance.

No regrets for going back home but i feel awful for conservatives who have been so repeatedly stabbed in the back by their ruling class.

nagee76 on July 1, 2012 at 3:08 AM

What I dream of is a court where the justices will approach each decision with open ears and eyes in addition to open mouths

What I dream of is a court of Justices who interpret the Constitution according to original intent. Period. No politics. No self-preservation. Not partisan ideology. No guaranteed votes for any party or political philosophy.

By the way, keep in mind that the concept of judicial review was not what the Framers intended irrespective of Marbury v. Madison.

Where you are truly wrong, my dear friend Shaw, is here:

whose formal education on the complexities of constitutional law probably doesn’t extend much past their 11th grade civics class.

The Constitution is not some tortured document meant to only be understood by the Illuminati. The men who wrote it did so with an eye towards creating both the simple and complex. It is a document all mankind can read and understand. Whose principles live in the hearts of all people- if they take the opportunity to be introspective and yield to a higher being. It is intellectual in its articulation, masterful in its structure but simple in purpose and the conclusions which can be drawn from it.

What has happened and people find frustrating is that interpreting the Constitution has been made into an art or some type of parlor game where only few have been alleged to possess the knowledge to understand outcomes. I posit that is far from the intent of the Framers.

It also frustrates people to see outcomes which are predictable even by the simplest of men, and rightly so, become some masterful yet contra-intellectual interpretation which creates situations never envisioned by the Framers or right by any honest citizens review.

There will always be political divides. People such as Jefferson knew it and said it best in his letter to Abigail Adams after seeing how political had separated the two old friends:

“Both of our political parties, at least the honest portion of them, agree conscientiously in the same object—the public good; but they differ essentially in what they deem the means of promoting that good. One side believes it best done by one composition of the governing powers; the other, by a different one. One fears most the ignorance of the people; the other, the selfishness of rulers independent of them. Which is right, time and experience will prove.”

I won’t grotesquely oversimplify the law and state that all people will understand ever outcome. However, what I will say is the law is intended to serve the people, ensure fealty to the Constitution and produce a righteous, understandable outcome.

When the law does not comport with those basic requirements even the most naive of us knows it.

Marcus Traianus on July 1, 2012 at 9:16 AM

If I ever reach the point where I think the voice of our vote is powerless I might as well take to my bed and stay there for my remaining days.

Flora Duh on June 30, 2012 at 9:42 AM

So your fire to do something about it extends up to the point of actually risking something – but then straight to bed.

The founding fathers would be proud.

Midas on June 30, 2012 at 1:18 PM

That isn’t what she said. Really can’t see how you got to your response.

kim roy on June 30, 2012 at 4:05 PM

Yes it is, and yes you can.

Tell me; when the founding fathers decided at long last that their petitions, pleadings and ‘votes’ were powerless to affect change, did they resign themselves to their beds for the rest of their days in despair?

See, I don’t remember reading that in history, and I don’t think they would be proud of folks that would make that choice.

Not really hard to follow.

Midas on July 1, 2012 at 11:04 AM

Thought provoking and interesting, Jazz.

almosthandsome on July 1, 2012 at 11:53 AM

Wolf Howling,

I disagree with both of your points,

First I know that Levin (love him) said that it’s all “dicta”, and others lamented that the minority opinion didn’t specifically state “concurring in part”. Levin isn’t infallible, anyone who analyses the case knows that the mandate was rejected on the basis of Commerce Clause and Necessary and Proper, and it doesn’t matter if they stated that they concurred, obviously they did. If a similar case comes along, litigates will head straight for the taxation argument, so it’s immaterial in that regard. As far as the Supreme Court is concerned, nothing is ever binding on them, they are only limited by their concern for Stare Decisis, which is a guiding principle, not law.

As to your second point – it genuinely pains me to see a conservative arguing that exact words are more important than actual meanings. I had taken the view that we conservatives looked to the real meanings, looking for technicalities in the wording was the lib’s approach when they want to twist the meaning. “Rewriting” the law sounds very bad, until you realize that Roberts didn’t change the meaning one iota. If you don’t change the meaning, you haven’t changed anything meaningful.

Roberts looked to what the language of the mandate called for, what situation does it actually create? He found that the result was that anyone who did not have a health insurance policy would have to report that on their tax return, and pay the IRS at least $625, but not more than the actual price of obtaining insurance. Failure to have insurance isn’t a crime. Roberts found that the Congress does have the Constitutional authority to affect those exact ends via their power to tax.

I don’t think anyone can reasonably argue that Congress wouldn’t have the authority to pass a $625 tax on everyone, and then exempt anyone with health insurance. The net result would be the same, our 70,000 pages of tax code are full of other examples of the Government influencing behavior exactly the same way.

If you don’t disagree that Congress could do that, then your position becomes that SCOTUS should overturn major pieces of legislation based on wording rather than meaning. That fact that Congress may have the power to do a certain thing isn’t what’s material, it’s all about how they say it.

Once you get on board that train you will find yourself coming up with justifications like “If they had called (the tax) a tax in the bill, it would have never passed” That’s speculative, and denies the very nature of politics. Are you really asking the Court to enforce a “Truth in Politics” principle?

HoosierHawk on July 1, 2012 at 12:15 PM

I have been trying to figure a way to explain or excuse the Chief Justice for his action. It is bad law and on its face does great damage to the idea of federalism and limited government. The best I could do was to assume he held his responsibility to protect the institution of the Court above his duty to uphold the Constitution. He knew the lefts media would try to destroy the court in their coverage and the White House and the entire Democrat party would spend the next 5 months attacking the decision and the court. By voting as he did, he moves that attack to him from the right and he knows the right will not and can not (little media control) damage the court as much as the left can. That defending the Court in this manner means destroying an important bit of the Constitution, the reason the Court exists, seems to be lost on the fellow.

To me the lesson to be learned is to select an ideologue for the court in future, someone more interested in the law than in the institution and someone not swayed by A list cocktail party invites…No moderation at all…a solid committed vocal conservative. Anything less might be seduced by the dark side.

JIMV on July 1, 2012 at 12:39 PM

I want them to be able to reach a finding based on a vast body of knowledge even if it outrages an army of people whose formal education on the complexities of constitutional law probably doesn’t extend much past their 11th grade civics class.

Jazz Shaw, your opinion here seems to forget one important bit. ALL law is not good law. All precedence is not wise or constitutional precedence. An important, perhaps the most important, role of the court is to fix the mistakes of past courts, not to slavishly worship poor constitutional thinking simply because a previous group of our Robed Masters made a bad call decades earlier.

The biggest problem with our legal system is the assumption that once in a robe, a man become all wise or beyond criticism. The Court is not the Pope because the law is not a religion. Decision s like the ones we saw this week are what undermines what respect we still maintain for the ‘rule of law’.

JIMV on July 1, 2012 at 12:47 PM

Actually, the system is NOT set up to have “a final set of arbiters”; “judicial review” is nowhere in the Constitution. The reason being that it provides the basis for exactly what is causing so problems: we have a de-facto common law system, which is precisely what we have a CONSTITUTION to avoid. Judicial precedent is not meant to be the Supreme Law of our Land; the Constitution is. And it really is a straightforward document–the idea that it takes some sort of special training to read plain (if outdated) English is the liberal-elite excuse for the “living document” fallacy.
I don’t know which is more pathetic: that the Supreme Court of the United States actually ruled to uphold a law that was passed BEFORE IT WAS WRITTEN, or that they had the gall to point out the Federal government is actually limited to ENUMERATED POWERS in an opinion of thier un-Constitutional “power” judicial review.

q2600 on July 1, 2012 at 1:03 PM

HoosierHawk: Wording is meaning because words have meanings. For example, when a speeding ticket is worded as a penalty everyone agrees with it. But if you were to say we’d tax everyone and then exempt people from that tax if they didn’t speed, no one would agree with it. Congress got Obamacare passed (just barely and with much chicanery) using the word penalty. All agree that if they had used the word tax the votes wouldn’t have been there. So wording is meaning.

Roberts should have invalidated the law and advised Congress that if they restructured the individual mandate as a tax it would then pass constitutional muster. Then Obama and the Dems would decide if they wanted to try to sell the individual mandate to the American people as a tax. Another word and meaning come to mind here: Honesty.

csmats on July 1, 2012 at 1:15 PM

We must get out the vote to win in November. We need to support Romney, win the senate back and maintain the house and Obowmacare is gone.

Get angry and get out the vote. If the vote is not close, they can’t cheat.

dthorny on July 1, 2012 at 1:48 PM

Jazz, I don’t ever want to hear you complain about “Judicial activism” again… since you seem to think that was fine in the BIGGEST case on the docket.

The Supreme court basically (for the congress) rewrote an entire law, just because Roberts wanted to “protect” his court from coming under criticism.

Forget the political divide, Roberts took it upon himself to rewrite the law so that it would be acceptable in “his” eyes. That’s not the SC’s purpose, it never has been, never should be.

Csmats said it correctly:

Roberts should have invalidated the law and advised Congress that if they restructured the individual mandate as a tax it would then pass constitutional muster.

That’s the end of the argument, and Roberts didn’t do that.

DaSaintFan on July 2, 2012 at 12:38 AM

We absolutely deserve the punishment we will receive unless we wake up and repent.

Steveangell on July 1, 2012 at 12:41 AM

I hear what you’re saying yet I prefer to keep religion out of politics . . . even though the religion of liberalism surely is involved in Romney’s piss poor decisions of past.

I used to think he was a Mormon. Turns out he is merely a moron.

DannoJyd on July 3, 2012 at 2:35 AM

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