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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interesting perspective jazz. thanks for sharing. As a veteran myself, and one who has a 3-blue star flag on my wall (Grandmother–WWII Navy nurse, Great Uncle WWII Africa/Europe campaigns in Red Bull division, Great Uncle — bombardier/navigator) I know exactly how you feel regarding Stolen Valor.

ted c on June 30, 2012 at 8:37 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.

Keep dreaming. If Obama’s re-elected, a doctrinaire liberal to replace whomever retires next is guaranteed.

The only thing to do is fight like hell to elect Mitt and a Republican Senate, and hold their feet to the fire. A lot of reasonable people (myself included) are seeing Roberts’ ruling as a knife in the back and coming around to the position that the GOP is quickly running out of chances as a going concern.

BadgerHawk on June 30, 2012 at 8:40 AM

One of the problems of SCOTUS and appeals court appointments is that the Demns oppose qualified people on ideological groudns, while the GOP (Stupid Party) says as long as the person is qualified (a term used loosely), then the President should be allowed his picks, regardless of ideology.

Wethal on June 30, 2012 at 8:45 AM

OT-ish – The top three pictures on Hot Air this morning almost made me lose my breakfast. Smug, Smug, Smug…

Fallon on June 30, 2012 at 8:45 AM

There are no politicians, judges, etc. who will seek truth above ideology or self preservation. They are amoral. They are not concerned with truth. They are only concerned with their agenda.

texanpride on June 30, 2012 at 8:47 AM

Roots of “Fast and Furious” go back to Clinton Administration.

Many of the same questions were raised about ATF operations in the Twin Cities in 1996, when Gillett was a street agent tracking gun store sales to “straw buyers” working for suspected gang members. Some of those guns turned up in drug busts and crime scenes, including one that was found at the scene of a deadly shootout in north Minneapolis.

J_Crater on June 30, 2012 at 8:47 AM

What I find disturbing is that I have read no pundits who question or criticize the lockstep closing of the ranks by the Leftists on the SC. Their position was a given even before the arguments were made before them. (And those arguments had holes shot through them throughout.) Shouldn’t that lack of jurisprudence be a cause for alarm?

The outcome of this decision all but ignored references to the Constitution itself as the shaping factor. The Left has lost its way by contorting its reasoning to fit ideology, not the founding document at all. Unfortunately, it appears that CJ Roberts did the same.

onlineanalyst on June 30, 2012 at 8:47 AM

For what ever reason Roberts did what he did, to me he thinks a lot like Pelosi.

tim c on June 30, 2012 at 8:50 AM

The problem is that Roberts didn’t just rule on it, he rewrote it. He is given a life-time appointment to judge Constitutionality, not be a super-legislator. If he wants to write laws, he should resign and run for Congress. Unfortunately, if Romney is elected, we will see more Roberts and Souter clones.

FirelandsO3 on June 30, 2012 at 8:50 AM

Splink
I agree totaly with your assessment, ppl don’t realize we have to keep fighting to keep our freedoms. I was one of the ppl who used to say, they won’t ever try that, boy was I wrong…..If we don’t continue to hold our elected officials feet to the fire, we as a country, are doomed ……….;)

angrymike on June 30, 2012 at 8:54 AM

What I find disturbing is that I have read no pundits who question or criticize the lockstep closing of the ranks by the Leftists on the SC. Their position was a given even before the arguments were made before them. (And those arguments had holes shot through them throughout.) Shouldn’t that lack of jurisprudence be a cause for alarm?

The outcome of this decision all but ignored references to the Constitution itself as the shaping factor. The Left has lost its way by contorting its reasoning to fit ideology, not the founding document at all. Unfortunately, it appears that CJ Roberts did the same.

onlineanalyst on June 30, 2012 at 8:47 AM

What Jazz laments in the courts, the lack of true nonpartisanship, is mourned in the press as well. With the left, the end always justifies the means.

Fallon on June 30, 2012 at 8:54 AM

I was at Arlington yesterday visiting a relatives grave. As I walked around the grounds an immense sene of sadness came over me as I realized that the deaths of these warriors and heroes were wasted. The utter contempt and disrespect that is shown by the filth across the river for the sacrifice that was made by our soldiers nearly brought me to my knees.

But then I realized it wasn’t a waste…that I need to look to these warriors for strength. It is now up to us to make sure their sacrifice is not wasted. It is time for true patriots to make our own sacrifices and work tirelessly to remove those who want to strip us of our freedoms and liberty. The fight is not over….it is just beginning! We did it before and we can do it again.

I found a new sense of purpose walking those hallowed grounds. I spent the first half of my life enjoying the freedoms and liberties that the men and women in Arlingington sacrificed their lives for. I took for granted what being a patriot means. Now I will spend the second half of my life making sure their ultimate sacrifice isn’t wasted.

Ditkaca on June 30, 2012 at 8:58 AM

I just want judges to make decisions based on the Constitution instead of some other BS, but they don’t. This cannot be spun as “doing a service” to the Court.

That’s that, so the only option is to get rid of Democrats and change policies through legislation.

forest on June 30, 2012 at 8:58 AM

Thanks Jazz, I completely agree with your perspective on this. I was struck early on after the ruling was announced that I felt disappointed, yes; but philosophical too. I read some of the initial text and my consistent reaction to reading that and more in the days since, have just confirmed my — well, I guess the word is ambivalence, though that seems more negative than I’d like–initial response to the ruling.

I’ve argued all along that Roberts issued a very conservative ruling, and if conservatives were really interested in the conservative perspective, they’d see that easily. I can’t say I’m not disappointed that I didn’t get the opportunity to crow like Democrats are doing; but in considering the arguments that Roberts made–AND LIBERAL JUSTICES AGREED WITH in part IIIC–I think it’s fair to say that Roberts’s majority opinion is a mighty one and will resound like an echo into the future and conservatives will thank him again and again for it, though they may not think so now.

A “tax” can be rescinded through a vote; an unfettered “commerce” clause has been dealt a death blow.

mountainaires on June 30, 2012 at 9:00 AM

Roberts threw the Obamacare ball back into congress & the people…We will either work to elect conservatives who will reconcile or repeal…or we won’t.

Stolen valor decision was probably correct as well given that we already have laws for fraud & If public shaming is not a deterrent to liars then they are a lost cause anyhow.
This is where citizen(s), especially bloggers in new media can take up that fraud expose’ responsibility imho.

It’s disgusting that politicians and others would either pad their service records or outright lie about their records (Or lack of record) to gain an advantage by impressing people…but some folks are morally mis-guided to an almost childish level.

workingclass artist on June 30, 2012 at 9:00 AM

I call BS. Sure conservatives believe in reading and interpreting laws, jurisprudence and restraint. Liberals don’t. They just win. Time and time again. And the first chance we get to undo so much of the activist damage to the constitution, we’re too restrained to do it.

It’s Bush 41 vs Saul Alinsky and nice guys always lose. In Roe v Wade, the court enacted a de facto repeal of the 10th amendment. Despite the fact that state have always had the purview of regulating the.medical profession and the fact that the constitution is silent on the matter of medical procedures, the Warren Court struck down no less than 46 duly enacted state abortion laws. Forty years and forty million dead babies later, the 10th amendment is still largely ignored.

Roberts is a decent smart guy who thinks he’s strengthened the rule of law. He’s wrong. The truth is the the four liberal justices and most judges will say and do and redefine anything to win, constitution and precedent be damned. His commerce clause language will simply be circumvented with creative language the next chance they get. The never ever seriously thought about the question and were always going to do whatever the left wanted.

Why is it that republican appointed judges sometimes drift left like frickin Souter and Roberts, but dem judges never drift right? It’s because we’re selecting judges and they’re selecting rabid activists that aren’t honest enough to ever listen to reason, much less the millions of people begging them to give us nothing more than the constitution as written?

Libs lick their chops at Robert’s reasonableness and desire to create consensus as they know it means he can be bullied. This is not a victory for jurisprudence. This is a victory for FDR style court intimidation. Even Roberts knows his tax vs penalty distinction is BS to try to give both sides a victory. This is a pattern for him. What he doesn’t realize is that there is no longer any law. There is only winning.

xuyee on June 30, 2012 at 9:01 AM

I sure hope Mrs. Roberts really enjoys those elitist cocktail parties she will get to go to now. I mean some one might as will get something out of turning America into a banana republic where the Supreme Court writes legislation from the bench.

pwb on June 30, 2012 at 9:03 AM

I honestly don’t know what to type in response to this article. I sense that your heart is in the right place JS, but also that your wishes for the SC are mired in some ‘moderate’ quagmire that cares not for ‘constitutionality’, but… something else.

I’m sorry, but yes – when you have ‘one side’ who expressly wants things that are *NOT* constitutional – exclaiming openly that their vision is of a living/breathing Constitution that allows things that are not allowed under a strict reading of the document, and ‘another side’ who decry that kind of thing and hold to a what the document actually says (along with the context provided by those who wrote it that underscore that understanding), then yes, I think you can objectively view that as one side knowing better than the other what *is* Constitutional and what is not.

You can condescendingly (or frankly mushheadedly) decry that as ‘puffery’ if you want, but from here it’s logic, common sense, and a desire to see things work they way they’re supposed to – not simply the way we want it to. And if we get pissed when that doesn’t happen, that doesn’t mean we’re simply sore losers, it means there’s genuine concern that this country continues far afield from its founding principles and documents, and that the path back is being lost in the brush along the way.

To recap, a serious question:

- if ‘one side’ wants things to happen according to their moving foundation of a ‘living/breathing Constitution’, subject to their whims and desires at that moment in time, and expects lawmakers, presidents and jurists to fudge, blur the lines, push the legal envelope, twist and invent meanings of the clear Constitutional language at every opportunity to further their own personal wants at the clear and open expense and rights of others;
- if ‘another side’ wants things to happen according to the Constitution itself, as written and legally amended by the processes indicated therein, and expects lawmakers, presidents and jurists to hold to that standard so that everyone is treated equally under that recognizable and reliably stable framework…

… you tell me which one is closer (not perfect) understanding of what is and isn’t Constitutional?

If you can’t answer that, then kindly quit chastising those of us who can.

Midas on June 30, 2012 at 9:04 AM

It’s time for a Tea Party.

kingsjester on June 30, 2012 at 9:06 AM

Jazz, That was a good read.

For my own part, I did not see this coming. No way. I haven’t lost respect for the Chief Justice over the ruling, but I don’t agree with him. He’s the same intellectual titan and impartial jurist I thought he was.

I’m not one of those who has convinced himself that what he wants and what is true are invariably the same thing. In order to reach his decision, Roberts had to declare a penalty to be a tax even when the law was careful to say it was not a tax. In essence he had to oppose the will of Congress in order to uphold the will of Congress!

When I look at our court, I see no contest between the claims that the left are the partisan jurists and the right are much more faithful to their duties. Of course that’s the case! I am not saying the left side is always wrong, but I see a consistent disregard of the letter and spirit of our Constitution in order to arrive at their desired ends. I find the right side of the court to be incomparable in their efforts to discipline themselves to the preservation of the limits of government and respect for the democratic process.

MJBrutus on June 30, 2012 at 9:07 AM

I am just wondering when WAS it that a Democratically nominated Justice EVER switched sides -like Roberts? When you find one, Michelle, do let us all know. I am just sick that what was supposed to be a pure constitutionalist managed to twist and convolute the law to fit his persional thoughts. Disgusting ruling and Roberts should be ashamed that he broke his solumn oath.
There now is NO end to what our Govt. can do to us and simply call it a tax. And we are no longer free. And freedom is NOT partisan, Michelle, or up to the whim of a lawyer in a robe!

polokfla on June 30, 2012 at 9:08 AM

Ditkaca on June 30, 2012 at 8:58 AM

Thank you. You have graciously articulated what many of us have been trying to put into words for 2 days.

Bravo!

Flora Duh on June 30, 2012 at 9:10 AM

A “tax” can be rescinded through a vote; an unfettered “commerce” clause has been dealt a death blow.

mountainaires on June 30, 2012 at 9:00 AM

Because liberal lawmakers and jurists have such a clear history of letting something like that keep them from doing whatever they want in subsequent situations, right?

Please. If that were the case, we wouldn’t be having this discussion.

Midas on June 30, 2012 at 9:10 AM

polokfla on June 30, 2012 at 9:08 AM

While I don’t like the decision, what has changed with regard to the power to force behavior through taxation? Roberts did not expand this power. Congress could have written the law as a tax to begin with it. Congress could have required us to each grow a bushel of wheat and tax us for not complying both before and after this decision.

MJBrutus on June 30, 2012 at 9:11 AM

I listened to Krauthammer’s theory on Roberts last night. He talked about the 3 separate but equal powers and how they have to maintain their dignity, equality and uphold the respect for the institutions. That’s nice but somewhere in there should be a respect for the constitution. Ginsberg recently told a newly elected leader of a foreign country not to use the constitution as a guideline. Our dear leader tramples all over the constitution with every EO. Roberts copied that action by rewriting the law he was considering. How do these actions uphold the dignity and respect for their institutions? The constitution is more than just a law, that’s like saying the Bible is just a book. It is the foundation for our country. Maybe the court should try to follow it instead of their own self importance.

Kissmygrits on June 30, 2012 at 9:13 AM

Kissmygrits on June 30, 2012 at 9:13 AM

The bible is just a book. But I digress :-)

MJBrutus on June 30, 2012 at 9:15 AM

Congress could have written the law as a tax to begin with it. Congress could have required us to each grow a bushel of wheat and tax us for not complying both before and after this decision.

MJBrutus on June 30, 2012 at 9:11 AM

True, but the SC just gave it their seal of approval. I’m sure political minds are racing at the previously unimaginable possibilities to do precisely that.

Before this, they’d have been laughed at for suggesting such an absurdity – as we have been right up until Thursday morning.

Now, not so much.

Midas on June 30, 2012 at 9:15 AM

Midas on June 30, 2012 at 9:10 AM

Ask those who lost their seats in the 2010 “shellacking” if given the chance to do it over, if they would vote “yes” on Obamacare again.

Flora Duh on June 30, 2012 at 9:16 AM

The Constitution, The Constitution, The Constitution, The Constitution. Good grief it’s as some of you think that’s all this country’s about. It’s a part of what makes us, that’s all. The founders would be sick if they knew the justification of massive federal government takeover of an industry and a mandate for it’s citizens to participate in in was The Constitution. Everything about Obamacare is antithetical to what makes America what it is, but hey, that’s o.k. because Robert’s say’s it passes Constitutional mustard.
It’s insane.

lowandslow on June 30, 2012 at 9:16 AM

Ditkaca on June 30, 2012 at 8:58 AM

That post really hits home. Well said!

Key West Reader on June 30, 2012 at 9:17 AM

Being a conservative judge is not the same as a being a socialist ideologue. Scalia, Kennedy, Thomas, and Alito reviewed the facts and referred to the constitution in their dissent, not their “feelings”.

workhard on June 30, 2012 at 9:18 AM

In the end, Obama will lose the presidency AND the senate AND his crappy ill-conceived “law”.

Key West Reader on June 30, 2012 at 9:19 AM

Ask those who lost their seats in the 2010 “shellacking” if given the chance to do it over, if they would vote “yes” on Obamacare again.

Flora Duh on June 30, 2012 at 9:16 AM

You think they were remorseful on Thursday? Or today?

I picture them cashing their lobbyist paycheck (larger than their Congressional one), sitting down to a brunch with mimosas, and high-fiving each other this morning for their epic once-in-several-lifetimes heroic achievement. How do you think they feel today?

Midas on June 30, 2012 at 9:19 AM

Been taking the last couple of days to read up on the decision and weigh the points from both sides. But after careful consideration, I’m going with Ed, J.E, Jindal….etc. Mark Levin’s thorough explanation was very convincing, and he does a great job of explaining the details to people who aren’t constitutional scholars.

But that’s over. So Romney’s going to repeal the whole thing on day 1, right?

Dongemaharu on June 30, 2012 at 9:21 AM

The constitution is more than just a law, that’s like saying the Bible is just a book. It is the foundation for our country.

No it isn’t. Liberty and a society unbound by government shackles is the foundation of our country. The fact the people can use The Constitution to further the government control over our lifes proves it the foundation of our country.

lowandslow on June 30, 2012 at 9:21 AM

In the end, Obama will lose the presidency AND the senate AND his crappy ill-conceived “law”.

Key West Reader on June 30, 2012 at 9:19 AM

“From your lips to God’s ear”, my friend.

However, considering it requires the GOP to actually have a spine and behave as we expect Constitution-respecting politicians to behave (ahem, JS), I’m a bit more cynical about those prospects.

Midas on June 30, 2012 at 9:22 AM

A “tax” can be rescinded through a vote; an unfettered “commerce” clause has been dealt a death blow.

mountainaires on June 30, 2012 at 9:00 AM

A serious question. Please name a tax that has been rescinded?

Amjean on June 30, 2012 at 9:22 AM

Anybody seen any hand wringing commentary from the left worrying about the damage this decision did to the SCOTUS..?

d1carter on June 30, 2012 at 9:22 AM

Congress could have written the law as a tax to begin with it.

MJBrutus on June 30, 2012 at 9:11 AM

And it never would have been passed into law.

BadgerHawk on June 30, 2012 at 9:23 AM

The fact the people can use The Constitution to further the government control over our lifes proves it the foundation of our country.

The fact that people can use The Constitution to further the government control over our lifes proves it isn’t the foundation of our country.

Man I’m pissed, can’t even proof read.

lowandslow on June 30, 2012 at 9:23 AM

And we need to know that presidents will appoint people who will seek the truth regardless of which way the political winds are blowing

On what basis can modern Western people even hope for such a thing when the very concept of Truth is no longer a fixed concept? The problem is much larger and of much more consequence than the Supreme Court nominees or the presidents who choose them.

Cleombrotus on June 30, 2012 at 9:23 AM

Midas on June 30, 2012 at 9:15 AM

Sure. But now we’ve left the legal question and made it a political question. That development could be to our advantage. Obama promised not to increase taxes on us poor, working slobs. He can keep trying to fool people in to believing that he didn’t just give us the largest tax increase in history.

Right out of the gate, Romney has chosen this avenue to campaign on. He is going around the nation making sure that everyone understands that ObamaCare is a new, historically huge tax.

MJBrutus on June 30, 2012 at 9:24 AM

And it never would have been passed into law.

BadgerHawk on June 30, 2012 at 9:23 AM

Agreed. But now that it has been shown unmistakeably to be a tax, it could well be the death of it as well.

MJBrutus on June 30, 2012 at 9:25 AM

When asked about the Stolen Valor ruling John Kerry said he would refrain from comment until after accepting his self-awarded Medal of Honor.

viking01 on June 30, 2012 at 9:25 AM

Sure conservatives believe in reading and interpreting laws, jurisprudence and restraint. Liberals don’t. They just win.

xuyee on June 30, 2012 at 9:01 AM

That’s right. I’m tired of losing, then seeing PTSD expressed in the form of some op/ed columnist’s interpretation of how this weakens the commerce clause, as if that will stop the statists. I want the people I vote for to finally fight and to win, and I want the win to last, so that I can be free to live my life as I see fit.

86 on June 30, 2012 at 9:28 AM

I agree completely. Roberts said: don’t come whining to us. You voted these creeps in, and this is what these creeps do. If you want redress, THROW THEM OUT.
John the Libertarian on June 30, 2012 at 2:07 AM
I’m beginning to understand the theory being proposed as to Robert’s motivations and intentions but I am coming up hard and fast against the question of whether it was his place to do so, assuming his conscious motivations WERE as noble as people seem to be making them.
If so, isn’t he simply engaging in his own form of judicial activism and not fulfilling the Constitutional role of the Supreme Court?

(Taken from the QOTD thread)

Cleombrotus on June 30, 2012 at 9:28 AM

From Jazz shaw in the article above:

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.

This is plain BS RINO doublespeak, get with the program, shut up and sit down crap. We are not dopes out here and can fully understand what we read in the constitution. It’s not rocket science or brain surgery, it’s simple reading comprehension.

When Thomas Jefferson was confronted about a passage in constitution and what was meant by it, ie read between the lines type of stuff, he replied saying in effect “I’ve read between the lines and all I see is white”. In other words the constitution is what is written in it period, nothing more nothing less. It means what it says, it isn’t written to construe what it doesn’t say. In other words it isn’t living and cannot be molded to fit a certain law, nor can the Supreme Court change a law to fit it’s version of what it thinks the constitution says, and that’s what was done with this idiotic tyrannical ruling.

bgibbs1000 on June 30, 2012 at 9:29 AM

I call BS. Sure conservatives believe in reading and interpreting laws, jurisprudence and restraint. Liberals don’t. They just win. Time and time again. And the first chance we get to undo so much of the activist damage to the constitution, we’re too restrained to do it.

It’s Bush 41 vs Saul Alinsky and nice guys always lose. In Roe v Wade, the court enacted a de facto repeal of the 10th amendment. Despite the fact that state have always had the purview of regulating the.medical profession and the fact that the constitution is silent on the matter of medical procedures, the Warren Court struck down no less than 46 duly enacted state abortion laws. Forty years and forty million dead babies later, the 10th amendment is still largely ignored.

Roberts is a decent smart guy who thinks he’s strengthened the rule of law. He’s wrong. The truth is the the four liberal justices and most judges will say and do and redefine anything to win, constitution and precedent be damned. His commerce clause language will simply be circumvented with creative language the next chance they get. The never ever seriously thought about the question and were always going to do whatever the left wanted.

Why is it that republican appointed judges sometimes drift left like frickin Souter and Roberts, but dem judges never drift right? It’s because we’re selecting judges and they’re selecting rabid activists that aren’t honest enough to ever listen to reason, much less the millions of people begging them to give us nothing more than the constitution as written?

Libs lick their chops at Robert’s reasonableness and desire to create consensus as they know it means he can be bullied. This is not a victory for jurisprudence. This is a victory for FDR style court intimidation. Even Roberts knows his tax vs penalty distinction is BS to try to give both sides a victory. This is a pattern for him. What he doesn’t realize is that there is no longer any law. There is only winning.

xuyee on June 30, 2012 at 9:01 AM

This is probably the best comment I’ve read on Hotair all year if not longer. We conservatives need to realize that this is the bold faced truth and start playing to win. Liberals have known this all along and they’re fully invested, that’s why stuff like this happens and we end up getting whooped at every turn.

Swerve22 on June 30, 2012 at 9:30 AM

Key West Reader on June 30, 2012 at 9:17 AM

Thank you!

I was fortunate to have my teenage daughter with me and she was extremely moved at the experience. That really got to me. As corny as it sounds…our children are the future. To see the look on her face as she looked out over the never ending rows of headstones and her realization of what it took to protect our freedom…words fail me.

Ditkaca on June 30, 2012 at 9:30 AM

Seems to me, the liberals judges never flip. It’s only the conservatives. Means to me that the lib judges are more ideological and political than the conserves. Yet somehow, lib judges are never condemned for being ideologues and creatures of their politics while conserv judges are frequently impugned on those grounds.

How does a judge rewriting a bill to change a “mandate” to a “tax,” thus assessing taxes from the bench, comply with the constitution in any way? What difference does it make to the people if government takes over their lives and restricts their personal freedoms using the commerce clause or by using taxation. I’m completely stumped… depressed… frustrated. It’s getting harder and harder to trust and support this government.

limmo on June 30, 2012 at 9:31 AM

Lessons learned from this ruling:

1) If you’re the left- demagogue the hell out of the court, in the press, on TV, everywhere. If you’re the President, bully them. Call them out at Congress when they can’t respond, claim anything they do to overturn your monstrosity would be ‘unprecedented’. It may not help in the end, but it can’t hurt. Roberts was treated like absolute garbage, and he STILL found a way to torture logic and side with the left.

2) If you’re Roberts- you just learned that siding with the left on historic or controversial decisions is the way to go. The press will love you, the history books will speak favorably towards you, and a small but influential group of conservative writers will support you decision either way. The only harm that can come to your prestige and reputation comes from siding with conservatism.

3) If you’re the right- never, ever, ever nominate a blank slate to the court again.

BadgerHawk on June 30, 2012 at 9:32 AM

The John Roberts Enabling Act of 1933 2012

Czar of Defenestration on June 30, 2012 at 9:32 AM

Right out of the gate, Romney has chosen this avenue to campaign on. He is going around the nation making sure that everyone understands that ObamaCare is a new, historically huge tax.

MJBrutus on June 30, 2012 at 9:24 AM

Think of the poor working shlub earning $30k a year, who cannot afford health coverage to begin with. Now that shlub will not only NOT have health coverage he’ll also be taxed on something he doesn’t have and cannot afford to have.

/Lovely.

Key West Reader on June 30, 2012 at 9:33 AM

Judges drift off the Constitution when they rule based on feelings, empathy, etc. anything other than the law.

Imrahil on June 30, 2012 at 9:33 AM

But now that it has been shown unmistakeably to be a tax, it could well be the death of it as well.

MJBrutus on June 30, 2012 at 9:25 AM

Or Roberts could have just not beaten logic with a tire iron and struck it down on Thursday.

That would have been a bit easier than the GOP winning the White House, the Senate, and growing the set of balls needed to overturn ObamaCare in the face of what will likely be the most sustained leftist and media barrage of all time.

Not that it can’t be done – Romney will never be re-elected if he doesn’t try – but it’s a much tougher road than the slam dunk we had two days ago.

BadgerHawk on June 30, 2012 at 9:35 AM

And no conservatives before Thursday saw all the great things coming from a SCOTUS decision to uphold the mandate and Obamacare as a whole. It took the great conservative mind of Robert’s to show everyone the way.
What a load of crap.

lowandslow on June 30, 2012 at 9:35 AM

Sure. But now we’ve left the legal question and made it a political question. That development could be to our advantage. Obama promised not to increase taxes on us poor, working slobs. He can keep trying to fool people in to believing that he didn’t just give us the largest tax increase in history.

Right out of the gate, Romney has chosen this avenue to campaign on. He is going around the nation making sure that everyone understands that ObamaCare is a new, historically huge tax.

MJBrutus on June 30, 2012 at 9:24 AM

it seems that local donation money has become scarce for the unicorn prince and he’s sent hollywood glambassador George Clooney overseas to raise it.
http://www.washingtonpost.com/politics/clooney-to-raise-money-for-obama-from-americans-living-abroad-at-august-

workingclass artist on June 30, 2012 at 9:37 AM

Question. For all those who don’t see this ruling as a bad thing, where were all of the opinion pieces defending the constitutionality of this law before this decision. Where were the.opinion pieces defending Nancy Pelosi’s position regarding this constitutionality of this law.

antifederalist on June 30, 2012 at 9:38 AM

I thought Mark Steyn’s review may have been better.

hillsoftx on June 30, 2012 at 9:38 AM

We need the courts. And we need them to be free from the shackles of politics and ideology.

Ginsberg, Breyer, Sotomayor, Kagan (sorry if I didn’t spell those names correctly)…

THAT’S what we need to be free from…

Khun Joe on June 30, 2012 at 9:39 AM

Think of the poor working shlub earning $30k a year, who cannot afford health coverage to begin with. Now that shlub will not only NOT have health coverage he’ll also be taxed on something he doesn’t have and cannot afford to have.

/Lovely.

Key West Reader on June 30, 2012 at 9:33 AM

That’s wrong. People below a certain income will not have to pay for their healthcare outside of payroll taxes.

libfreeordie on June 30, 2012 at 9:40 AM

We need the courts. And we need them to be free from the shackles of politics and ideology.

In other words, we need judges who are not human beings. Sorry, that’s never going to happen Jazz. The courts have always been political institutions, and they always will be, because they are run by people. That’s a fact that liberals understand better than many conversatives do. When you’re choosing a judge, ideology matters but something else matters even more: character. Human beings, no matter their ideology, are flawed and fallible beings who are always subject to temptation and the whims of the ego. In the case of John Roberts, it appears he subordinated his belief in the constitution to his desire to protect his own legacy and the perceived (by leftist elites) “legitimacy” of his court.

AZCoyote on June 30, 2012 at 9:41 AM

How do you think they feel today?

Midas on June 30, 2012 at 9:19 AM

I don’t care how they “feel” today. Nor do I care who they might be sitting down to brunch with. I only care about reality. And the reality is that because “We The People” asserted our power of the vote those Representatives no longer hold their offices.

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

That’s wrong. People below a certain income will not have to pay for their healthcare outside of payroll taxes.

libfreeordie on June 30, 2012 at 9:40 AM

I must of have missed the poverty exemption from participating in Obamacare.

lowandslow on June 30, 2012 at 9:42 AM

But now that it has been shown unmistakeably to be a tax, it could well be the death of it as well.

MJBrutus on June 30, 2012 at 9:25 AM

Or Roberts could have just not beaten logic with a tire iron and struck it down on Thursday.

That would have been a bit easier than the GOP winning the White House, the Senate, and growing the set of balls needed to overturn ObamaCare in the face of what will likely be the most sustained leftist and media barrage of all time.

Not that it can’t be done – Romney will never be re-elected if he doesn’t try – but it’s a much tougher road than the slam dunk we had two days ago.

BadgerHawk on June 30, 2012 at 9:35 AM

True that.

workingclass artist on June 30, 2012 at 9:43 AM

That’s wrong. People below a certain income will not have to pay for their healthcare outside of payroll taxes.

libfreeordie on June 30, 2012 at 9:40 AM | Delete | Delete and Ban

People below a “certain income” are already sucking the teet, monor. They don’t work, monor. They’re womb to tomb welfare recipients, monor.

Key West Reader on June 30, 2012 at 9:43 AM

This post could be entitled: The Case for Judicial Unilateral Disarmament.

Jon0815 on June 30, 2012 at 9:45 AM

I thought Mark Steyn’s review may have been better.

hillsoftx on June 30, 2012 at 9:38 AM

Thanks for posting that link

workingclass artist on June 30, 2012 at 9:46 AM

antifederalist on June 30, 2012 at 9:38 AM

I don’t consider this opinion to be a good thing at all, so I know that you’re not talking to me. However, I would like speak to your question.

The simple answer is that Roberts is smarter than me and I have learned some things from him that I didn’t even know I didn’t know before. I still think that he is completely wrong, but I can see how he brought home the point that the power to tax without limit is something very close to unlimited power, with or without a commerce clause.

MJBrutus on June 30, 2012 at 9:47 AM

Bottom line is they lied. Here’s the proof, straight from the horse’s mouth. Obama owns this one.

bloggless on June 30, 2012 at 9:47 AM

Krauthammer wrote that Roberts found a “narrow definitional dodge to uphold the law” – so, is this really the job of a Supreme Court Justice? Ridiculous. Obviously, Roberts searched for a way to uphold obama’s law, rather than approaching the law objectively. It is unclear exactly why Roberts sought a way to help obama, rather than doing his job, but clearly, Roberts has failed to uphold his oath and has permanently damaged himself and the court.

There is no silver lining in the SCOTUS ruling, and we should not assist obama by searching for positives in this shocking attack on our freedom. The SCOTUS ruling has altered America for ever – we are no longer a free people, and even if obama’s law is de-funded and repealed at some point in the future, permanent damage has already been done to our nation – there is no going back.

Pork-Chop on June 30, 2012 at 9:47 AM

The fact the people can use The Constitution to further the government control over our lifes proves it isn’t the foundation of our country.

lowandslow on June 30, 2012 at 9:21 AM

Technically speaking, the Declaration is the foundation of our country and the Constitution is the structural framework of our federal government. Liberty, natural (i.e., God-given) rights, and the rule of law (rather than men) are some of the bedrock principles on which that foundation was built.

All of which is irrelevant to your above point. The fact that some people try to use erroneous or totally novel interpretations of the Constitution to white-wash the advancement of their Statist goals says nothing about the Constitution and everything about the people misusing it.

Specifically regarding Obama, Pelosi, Reid, and the like — they don’t “use the Constitution to further government control”, they ignore, circumvent, and violate the Constitution (in both spirit and letter) in order to advance federal authority — that is, their power — over the citizenry.

Harpazo on June 30, 2012 at 9:47 AM

Roberts is a decent smart guy who thinks he’s strengthened the rule of law. He’s wrong. The truth is the the four liberal justices and most judges will say and do and redefine anything to win, constitution and precedent be damned. His commerce clause language will simply be circumvented with creative language the next chance they get.

……

xuyee on June 30, 2012 at 9:01 AM

Unfortunately, lower court judges and future SCOTUS justices won’t need to use “creative language” to get around Roberts’ commerce clause language. They will just say that it is dicta, and therefore not binding on them, and they will be right.

AZCoyote on June 30, 2012 at 9:48 AM

Question. For all those who don’t see this ruling as a bad thing, where were all of the opinion pieces defending the constitutionality of this law before this decision. Where were the.opinion pieces defending Nancy Pelosi’s position regarding this constitutionality of this law.

antifederalist on June 30, 2012 at 9:38 AM

They were not there of course because what is going on from both sides is good cop bad cop, and frog in boiling water type stuff. We have had creeping tyranny for almost a century now with one side the GOP playing good cop, while the other side, the Dems play bad cop. Imagine what would have taken place if all the tyrannical crap had been done quickly with both sides pushing it. We would have had a second civil war. Instead we have the commie Dems pushing this stuff, and the socialist GOP as a watershed pretending to try and stop them. Without the GOP watershed for the masses to vent their anger the anger would boil over into civil war.

bgibbs1000 on June 30, 2012 at 9:48 AM

Question. For all those who don’t see this ruling as a bad thing, where were all of the opinion pieces defending the constitutionality of this law before this decision. Where were the.opinion pieces defending Nancy Pelosi’s position regarding this constitutionality of this law.

antifederalist on June 30, 2012 at 9:38 AM

There isn’t any. These “conservative” pundits care more about cheerleading the brand then the actual direction of the country. Partisan hacks, all of these Robert’s apologists.

lowandslow on June 30, 2012 at 9:49 AM

From 9/13/2005:

“I have no platform,” John Roberts told the Senate Judiciary Committee yesterday. “I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind.”
Any conservative who feels assured by such a statement is not being attentive to the meaning of words. A thoughtful judge, a thoughtful person, is not equally “open” to any idea that comes along; he is expected already to have a framework of established understandings, precedents, principles—including the very meaning of the words that are being used—to guide him. If a litigant argued, say, that the Constitution really means that the death penalty is cruel and unusual punishment, or that the federal government can take over all state legislative functions, or that the Constitution is supposed to be interpreted so as to be in conformity with current moral and social attitudes in Europe, would Roberts be “open” to such an argument? How can judges decide on the rightness or wrongness of any case, and have their judgements be seen as legitimate by the community, unless there are settled standards by which to make a judgment, in other words, unless there are certain matters that are not open?

Only a judge who has no principles, and who is ready to drift wherever fashion or expediency takes him, would say that he confronts every case with an “open” mind. It’s a statement that could be made only by a liberal relativist.

TxAnn56 on June 30, 2012 at 9:52 AM

That’s wrong. People below a certain income will not have to pay for their healthcare outside of payroll taxes.

libfreeordie on June 30, 2012 at 9:40 AM

And who do you think is subsidizing their coverage, The Unicorn Bank & Trust?

hillsoftx on June 30, 2012 at 9:55 AM

Sorry Jazz, doesn’t fly! Rush and Levin have it right…unfortunately. Roberts did NOT do his job…the law as written is unconstitutional…so he rewrote it…end of story. He violated his OATH as did obama and those that voted for it.
Those are the facts…not some partisan opinion.

winston on June 30, 2012 at 9:58 AM

Harpazo on June 30, 2012 at 9:47 AM

All of which proves my point. America became what it was due to some fundamental beliefs and a culture that could and would uphold them. Not some rules on a piece of paper that could be manipulated at will to further their goal of changing what we are, or were I should say. Plenty of thing about the Constitution that I’d love to change to help protect us and better us as a country. Things in it that are actually harming us now. It ain’t gospel so to speak.

lowandslow on June 30, 2012 at 9:59 AM

That’s wrong. People below a certain income will not have to pay for their healthcare outside of payroll taxes.

libfreeordie on June 30, 2012 at 9:40 AM
And who do you think is subsidizing their coverage, The Unicorn Bank & Trust?

hillsoftx on June 30, 2012 at 9:55 AM | Delete | Delete and Ban

Your federal tax dollars = Obama stash

Mmm Mmm Mmm

Key West Reader on June 30, 2012 at 9:59 AM

Surprisingly enough I think Robrts was correct.

I think he and the other 4 conservative judges think Obamacare is a disaster.

However the Supreme court is not there to approve laws one way or another.

They are there to decide if a law is constitutional or not.

My opinion is the other 4 conservatives wanted the law gone.Since the commerce clause did not cover it they correctly voted it down because the commerce clause did not cover it.

they did not consider tax clause-because they wanted to vote down the law.

whether or not the government wanted to call it a tax-it is a tax and tax law does cover it.

Roberts did the right thing.

gerrym51 on June 30, 2012 at 10:01 AM

I wonder if the welfare queens with their ‘free’ health care will be penalized for calling ambulance service to take them to the emergency room for cramps.

Key West Reader on June 30, 2012 at 10:01 AM

I can’t wait until Roberts hands down another ruling that makes liberals hopping mad, then they will need to eat all the words and ink they wasted praising him.

They’ll still hate him. You have to be on their side pretty much 100% for them to love you. Our side is more nuanced, understanding, forgiving…

thebrokenrattle on June 30, 2012 at 10:02 AM

The law was unconstitutional as written and passed. Roberts re-wrote the law to make it constitional. I don’t want that kind of Judge no matter if they’re left or right.

As Robert’s said, their job is to interpret the law. He instead blamed America for their votes and abdicated his responsibility.

Vince on June 30, 2012 at 10:02 AM

Roberts WAS a coward. The Founders gave these jackwads lifetime appointments to protect them from making decisions based on getting elected. There is no protection against the court being ‘run against’ by the White House, etc. because it doesn’t matter. IF Roberts had had the courage to do his job, Obama could run his mouth all he wanted; the decision would have been made, and Roberts and the court would have done their job and kept honor. Instead, for expediency, Roberts put Court over Country. May he rot in hell.

avgjo on June 30, 2012 at 10:02 AM

While I don’t like the decision, what has changed with regard to the power to force behavior through taxation? Roberts did not expand this power. Congress could have written the law as a tax to begin with it.

MJBrutus on June 30, 2012 at 9:11 AM

Quite the Dems tried to have it both ways, it wasn’t a tax it was a penalty. Oh but not a penalty for doing wrong (Roberts rightly called bullshit on that – a penalty is a punishment for doing wrong, from the the Latin “poenas” punishment. This was in fact the only moral argument for the mandate, but they didn’t have the guts for that. It doesn’t “punish” so therefore is not a penalty. It’s a tax. So good look explaining the waivers etc to the American people …

Hope on June 30, 2012 at 10:02 AM

Roberts did the right thing.

gerrym51 on June 30, 2012 at 10:01 AM

No, he didn’t.

Key West Reader on June 30, 2012 at 10:03 AM

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.

This in and of itself describes the main problem. Instead of reading The Constitution itself and deciding if a law follows it, these “constitutional scholars” spend their whole lives trying to find ways to circumvent what is written. As soon as they get a liberal court(see FDR court) to authorize something against the constitution, it then becomes settled law and they used that point as the next starting point for the next unconstitutional law and we get further and further away from the original starting point. This is how we end up with 200 years of crap as our guiding principle instead of a simply written document that the majority of people could understand if they were to read it.

Corsair on June 30, 2012 at 10:04 AM

Among a series of horrendous columns by Jazz, this is probably the most inane pile of dung he’s ever produced.

besser tot als rot on June 30, 2012 at 10:04 AM

I detest the liberals on the court and the one alleged conservative who sided with them.

But in my lifetime I don’t think I have ever seen anyone less qualified, or less principled than Ms Kagan who lacked the integrity to recuse herself from a case she was heavily involved in.

Shay on June 30, 2012 at 10:05 AM

The most earth shattering announcement of this week occurred on Fox News last night…Geraldo announced that he was a Republican…

d1carter on June 30, 2012 at 10:05 AM

The decision was not some intelligent chess move by Roberts, but instead a cowardly act. The correct decision was tht of those much smarter (Scalia) andmore experienced (three of the four dissenters) than Roberts.

It is quite telling that the ones who are defending this are the usual “GOP is great” crowd. Gotta defend the brandno matter what I guess.

Anyway…

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

The leftists understand human nature much better than moderate RINOs do, which is why their judicial selections rarely betray them. In the past fifty or so years, the left has got it wrong only one time and that was Byron White.

We don’t need moderates with no core on the Court. They wull turn to the left almost every rime. The Left knows how to play them.

The weak can be manipulated. Either we start joining in on the manipulating or we quit picking weaklings.

McDuck on June 30, 2012 at 10:06 AM

Denial.

I’ve accepted that this is the first time in my I can’t celebrate having freedom on the 4th.

balkanmom on June 30, 2012 at 10:08 AM

Roberts did the right thing.

gerrym51 on June 30, 2012 at 10:01 AM

I remember you telling us that Wednesday. How great it is that the government can force me to buy health insurance because if I don’t I’m not facing a penalty but a tax.
Oh wait.

lowandslow on June 30, 2012 at 10:08 AM

Maybe we need instant reply for the Supreme Court ?

williampeck1958 on June 30, 2012 at 10:11 AM

The most earth shattering announcement of this week occurred on Fox News last night…Geraldo announced that he was a Republican…

d1carter on June 30, 2012 at 10:05 AM

.
I guess he wants to keep the money he makes too.

balkanmom on June 30, 2012 at 10:12 AM

While I don’t like the decision, what has changed with regard to the power to force behavior through taxation? Roberts did not expand this power. Congress could have written the law as a tax to begin with it.

MJBrutus on June 30, 2012 at 9:11 AM

After ObamaCare was initially passed and everyone was claiming that it was unconstitutional, I was very worried that Congress actually had the power to do this under the tax power, so I’m not necessarily disagreeing with you. But, I think that interpretation of this “tax” fundamentally changes the relationship between “citizen” and government. Generally taxes tax something, not nothing. Just as the regulation of commerce regulations something, not nothing. And that the “tax” is actually based on actual amount as opposed to a percentage of something is more fee than tax, and generally fees are associated with being for something. But, most fundamentally, I think that if Roberts wanted to go down the tax road, he should have given more attention to it during oral arguments and given the people a chance to respond and provide their best arguments. Or at least requested a brief on the subject.

besser tot als rot on June 30, 2012 at 10:13 AM

It is one thing to traffic whore with this nonsense, but quite another to buy into it.

There is a reason this place is known as “Tepid Air” since Malkin sold the site.

Valiant on June 30, 2012 at 10:14 AM

In addition, Congressional intent generally plays a major role in the interpretation of the law. Here, it is clear that there was absolutely zero congressional intent that ObamaCare be considered a tax. And it is quite clear that it would not have passed it if were considered a tax.

besser tot als rot on June 30, 2012 at 10:15 AM

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