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 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 the Constitutional ignorance continues.

Dante on June 30, 2012 at 10:21 AM

If Roberts passed said it is constitutional as a tax, and Obama says it is not a tax, does that mean Obama says it is unconstitutional?

Corsair on June 30, 2012 at 10:21 AM

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

Ding. Ding. Ding.

Toss in a percentage of conservative writers praising him for this tortured decision and it’s a fait accompli.

BadgerHawk on June 30, 2012 at 10:21 AM

The assumption that both sides are equal from pundits like this drives me insane. The left has been attacking traditional values and western civilization for decades. It has been an assault on everything most of us hold dear. And they have used the SCOTUS to ram things down community after community by insisting there be no sanctuary from their destructive policies and agenda. Now to see those who would justify this with a “well, on this hand and then on that hand” analysis just shows how far we have to go to fight for our conservative survival.

The left hates us and will use ANY underhanded /lawless method they can get away with to push their agenda. To pretend this is an equal thing is preposterous. Our families and future are toast if the march of liberalism is not stopped. And it will never happen with milk toast conservatives trying to place equal blame. Our problems arise from liberalism and the lack of a forceful opposition. Plain and simple!

artman1746 on June 30, 2012 at 10:21 AM

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

This is the point where I agree with you most strongly. It is where I think Roberts went afoul of his duty to rule on the law that was passed.

MJBrutus on June 30, 2012 at 10:22 AM

Roberts has done nothing but put more power in the hands of a very few. He did what all activist tyrannical judges do, especially those who think their Harvard Law degree qualifies them for genius status. He first rewrote a law to fit what he wanted to rule. He then found, somewhere so he says, a taxing power Congress does not have and wrote his own tax law. Shazam all the DC cocktail circuit and tyrannical ruling class on both sides yell genius. Meanwhile we debate it, go about our daily lives, prepare to vote, while the ruling class prepares to tighten their grip.

bgibbs1000 on June 30, 2012 at 10:23 AM

…an unfettered “commerce” clause has been dealt a death blow.

mountainaires on June 30, 2012 at 9:00 AM

I can’t make anywhere near as strong a conclusion. This decision gives us some insight into Roberts’s thinking on the commerce clause, but in this respect this is not a precedent. No court in the country will ever say “according to the precedent set in [this case's name] the commerce clause cannot be used for…

In addition, given the capricious nature of Roberts’s decision pattern in this case, I have no faith that this case is even a precedent in the Chief Justice’s own mind wrt the commerce clause.

slickwillie2001 on June 30, 2012 at 10:23 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 | Delete | Delete and Ban

And remember the poor shlubs earning $30k a year that cannot afford health insurance. Now he’ll not only NOT have that coverage, but he’ll be taxed on something he does not have and cannot afford.

This point needs to be hammered home because it is true.

Shame on Roberts and Obama.

Key West Reader on June 30, 2012 at 10:23 AM

Roberts failed to do his job. He caved to the criticism of Obama, the pundits, and his need for approval from an academia that is predominately liberal. Apparently his priority was to appease liberals so liberal historians will write the Robert’s Court was a fair court. He supported a partisan position, the liberal partisan position. Fair? That’s not the word that comes to mind.

Oracleforhire on June 30, 2012 at 10:23 AM

The problem with Roberts’ “independence” is the core theory he based it on… that he should give the Congress the benefit of the doubt and not invalidate a law… The court is the last stand to uphold the Constitution and protect the States and their citizens from the Congress and the Executive Branch. He had the opportunity to protect the Rights of the People and strike down a 2700 page leviathan (basically 100 normal bills, considering Glass-Stegal was 37 pages and it was the basis for successful bank regulation for over 60 years) Could not his nuanced lesson still have been taught within a full beat-down of the Act?

Time will tell if his contortions will be seen as 3 dimensional chess or if he just lost a game of tic-tac-toe to the chicken in Chinatown.

For now he has allowed the trampling the Rights of the People and increased billable hours at law firms…

phreshone on June 30, 2012 at 10:24 AM

Jazz,

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 MUST push doctrinaire, partisan, judges so we can be shackled with…

LIBERTY!!!!

Now phone up Mittens and tell him that if he picks Jindal as his Veep, he’ll get a fat check despite Mittens not needing it due to own money.

KirknBurker on June 30, 2012 at 10:24 AM

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

Roberts may indeed be smarter than all of us, but that’s not the question. The question is: “Is Roberts a better legal & Constitutional scholar than is Justice Kennedy?” And an affirmative answer to that question is highly suspect.

Furthermore, I disagree that the Constitution provides the federal gov’t with the power to tax without limit. The Constitution clearly enumerates — and thus limits — the taxation powers of the Congress (and the Sup. Ct. has precedent on this).

Federal taxes can only be levied: (1) on the states, in proportion to their populations, (2) on economic activity, or (3) since the 16th, on income.

Roberts’ entire argument that the individual mandate is actually a tax (and not a penalty for inactivity, as was argued) must, but does not, identify which of these three kinds of taxes (capitation, excise, or income) Obamacare falls under.

Krauthammer is great…sometimes. When he’s right, he’s really right; when he’s not, he’s dead wrong. It happens; he’s human. Krauthammer is wrong on this one, and Jazz, well meaning as I’m sure he is, is wrong to follow him on it.

I appreciate the efforts of people to try and put a shine on this turd, but at the end of the day it’s still a ball of sh*t.

Harpazo on June 30, 2012 at 10:25 AM

Both of the cases I was watching closely went the way I predicted

so you predicted that Roberts would rule it a tax ?

For far too many of us it means justices who will vote the way we want them to

for me, I just want them to look at what the Constitution says, and sometimes look at the writings of the Founders to glean their intent. That’s all

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 truth of the matter is, life is not all that complicated. The issues are the same from the good old days.

The law is neither liberal nor conservative

Yes it is.

I want justices who will, on occasion, surprise us.

Like Roberts ? or surprise us by actually ruling on the constitutionality of a law, instead of twisting things up like a pretzel ?

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.

I had it in 12th grade, ok ?

controversial cases, frequently shows a closely divided nation.

Not true. Controversial cases show how much influence the media and our schools are in convincing 1/2 the nation that evil is good, while the other half recognize it despite the media and our schools.

Idiotic article.

williampeck1958 on June 30, 2012 at 10:26 AM

Ditkaca, Yep, the rest is unimportant to me, my focus is not on the thing that just occurred, but rather on the things that must occur next. What is done is done. Time to get busy not wasting the sacrifice made on our behalf. Thanks.

Bmore on June 30, 2012 at 10:26 AM

The best thing I can say about this analysis is that I can see why you liked Krauthammer’s take the best.

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.

Well, that certainly reads like it was written by someone whose understanding of the complexities of constitutional law probably doesn’t extend much past their 11th grade civics class.

As for me, I concur with Justice Kennedy’s take on the Obamacare case. Not only did it surprise me but it is, I would hazard to guess, based on an understanding of the complexities of Constitutional law that extends above the 11th grade level.

Mr. Arkadin on June 30, 2012 at 10:28 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

What you both say is correct. During the Clinton years I felt the need to keep an eagle eye on everything he and the democrats in congress did. When George W. Bush was elected, I remember thinking, great, now I can get back to my own life and quit obsessing over everything going on in DC. He may not have been a perfect President, but I didn’t worry that he was sneaky, dishonest or willing to trash our way of life the way democrats are just to get what they want, ideologically.

What I have learned from the last four years, and from what happened on Thursday is that I can’t ever have that attitude again. I can’t just vote and think I’ve done my job as a citizen. The liberals never stop, and Pelosi let us all know that with her over the wall, parachute in, etc. speech. If we allow them to have power in the future, they will just pick up where they left off. Our wins will never last as long as 50% of the people in this country are willing to vote themselves free stuff.

Night Owl on June 30, 2012 at 10:28 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

Over the years I’ve read many stories of ambulance abuse in Canada and the UK, where ambulances are called for the most trivial of ailments. If something is free, it will be abused, -you can carve that in stone.

slickwillie2001 on June 30, 2012 at 10:30 AM

When George W. Bush was elected, I remember thinking, great, now I can get back to my own life and quit obsessing over everything going on in DC. He may not have been a perfect President, but I didn’t worry that he was sneaky, dishonest or willing to trash our way of life the way democrats are just to get what they want, ideologically.

Night Owl on June 30, 2012 at 10:28 AM

Did you draw any conclusions from his enthusiasm for shamnesty?

David Blue on June 30, 2012 at 10:33 AM

America now has a National Union…
We must all pay our dues…

Electrongod on June 30, 2012 at 10:33 AM

To those who keep asking what Mitt’s plan is for health care:

Mitt’s Plan

On his first day in office, Mitt Romney will issue an executive order that paves the way for the federal government to issue Obamacare waivers to all fifty states. He will then work with Congress to repeal the full legislation as quickly as possible.

In place of Obamacare, Mitt will pursue policies that give each state the power to craft a health care reform plan that is best for its own citizens. The federal government’s role will be to help markets work by creating a level playing field for competition.

Restore State Leadership and Flexibility

Mitt will begin by returning states to their proper place in charge of regulating local insurance markets and caring for the poor, uninsured, and chronically ill. States will have both the incentive and the flexibility to experiment, learn from one another, and craft the approaches best suited to their own citizens.

– Block grant Medicaid and other payments to states
– Limit federal standards and requirements on both private insurance and Medicaid coverage
– Ensure flexibility to help the uninsured, including public-private partnerships, exchanges, and subsidies
– Ensure flexibility to help the chronically ill, including high-risk pools, reinsurance, and risk adjustment
– Offer innovation grants to explore non-litigation alternatives to dispute resolution

Promote Free Markets and Fair Competition

Competition drives improvements in efficiency and effectiveness, offering consumers higher quality goods and services at lower cost. It can have the same effect in the health care system, if given the chance to work.

– Cap non-economic damages in medical malpractice lawsuits
– Empower individuals and small businesses to form purchasing pools
– Prevent discrimination against individuals with pre-existing conditions who maintain continuous coverage
– Facilitate IT interoperability

Empower Consumer Choice

For markets to work, consumers must have the information and the power to make decisions about their own care. Placing the patient at the center of the process will drive quality up and cost down while ensuring that services are designed to provide what Americans actually want.

– End tax discrimination against the individual purchase of insurance
– Allow consumers to purchase insurance across state lines
– Unshackle HSAs by allowing funds to be used for insurance premiums
– Promote “co-insurance” products
– Promote alternatives to “fee for service”
– Encourage “Consumer Reports”-type ratings of alternative insurance plans

These measures are designed to empower the states and the consumers. In particular I have longed to see tort reform, an end to discrimination against individuals purchasing their own policies (as opposed to relying on employer tax breaks) and allowing insurance to be purchased across state lines. That puts US as INDIVIDUALS in charge of our own health insurance choices. It takes power back from Fed-zilla to regulate both us and the insurance providers. These are the conditions needed for us to finally enjoy a free market for health care in the country.

MJBrutus on June 30, 2012 at 10:33 AM

The question is: “Is Roberts a better legal & Constitutional scholar than is Justice Kennedy?” And an affirmative answer to that question is highly suspect.

Harpazo on June 30, 2012 at 10:25 AM

Good point in responses to Jazz’s inanity that “not everyone knows everything about constitutional law,” so we should leave poor Mr. Roberts alone. Hey. Dude. I’m pretty sure that three guys in the dissent with over 20 years on the bench have a pretty good clue, and a much better sense than Roberts. Not to mention Kagan and Sotomayor.

besser tot als rot on June 30, 2012 at 10:34 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

Mark Levin disagrees with you

ChrisL on June 30, 2012 at 10:34 AM

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 may indeed be smarter than all of us, but that’s not the question.

Harpazo on June 30, 2012 at 10:25 AM

It was my answer to the question posed by the person who I responded to :-)

Specifically, “why didn’t I (or we) see this coming?”

MJBrutus on June 30, 2012 at 10:37 AM

… 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? …

xuyee on June 30, 2012 at 9:01 AM

I agree, in part, with your answer but there’s another factor as well. What a lot of people forget, not saying that you do, is that it is not the President who, in reality, appoints the judges and justices. It is the Senate, more specifically 67 members of that body, who does so. The President can nominate anyone he wants to the bench but if he can’t muster those 67 votes, he might as well have nominated a ham sandwich. Ask 43 about Harriet Miers.

So, what you get on that bench is largely determined by whom the people choose to send to the Senate. Historically, Senate Republicans (including the few true conservatives in their ranks) have taken the position, and one that I think is the correct one, that the President is entitled to his pick as long as he or she is not disqualified on serious ethical or moral or criminal grounds.

Senate Dems, on the other hand, while paying lip service to such a policy, go for the most strident liberals they can find to fill the slots, the hell with tradition or what’s right. Ginsburg ran the ACLU for God’s sake. Then again, and certainly not to be overlooked, there’s the liberal media complex which always has their six.

Bottom line, unless and until we have a super-majority of conservatives in that body, true conservatives, we have to settle for the best we can do. And, we’ve done pretty well under these conditions; imagine the Court without Scalia, Thomas, and Alito, for example. And, I’ll add Roberts, too, for without him we would’ve had to suffer through 4-8 years of a crazy man in the WH, not to mention some very bad results had, for instance, Citizens United gone the other way.

TXUS on June 30, 2012 at 10:38 AM

Roberts may indeed be smarter than all of us, but that’s not the question.

Harpazo on June 30, 2012 at 10:25 AM

It was my answer to the question posed by the person who I responded to :-)

Specifically, “why didn’t I (or we) see this coming?”

MJBrutus on June 30, 2012 at 10:37 AM

Fair enough. :-)

Harpazo on June 30, 2012 at 10:40 AM

You want surprising analysis, I’ll give you surprising analysis. The reason why the likes of Will, Brooks, and Krauthammer are writing these paeans to Robert’s decision is that he did not cave to pressure from the left; he caved to pressure from the right.

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.

Thanks for the help, but…

Mr. Arkadin on June 30, 2012 at 10:42 AM

Did you draw any conclusions from his enthusiasm for shamnesty?

David Blue on June 30, 2012 at 10:33 AM

I did say he wasn’t perfect, didn’t I? The reason it didn’t go anywhere was because of a massive revolt from the American people. If not for that, I feel pretty certain that a lot of our elected representatives would have been more than willing to push it through. (Also, I admitted that I really didn’t learn my lesson until Obama.)

Night Owl on June 30, 2012 at 10:43 AM

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.

Show me in the US Constitution where the Supreme Court is assigned the responsibility and power of Judicial Review- I can’t seem to find it.

Browncoatone on June 30, 2012 at 10:43 AM

Another pseudo intellect defending the indefensible.

What Roberts did will go down in history. He ruled the law unconstitutional, then rewrote it (from the bench) to make it constitutional.

Roberts just set a precedent for all time. Libs can now throw together crap bills (lie, cheat) and then the Supreme Court can rewrite the law (fix it up) and deem it good to go.

kevinkristy on June 30, 2012 at 10:43 AM

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.

Whoa, such pathetic bullshit, Jazz.

The law might not be liberal or conservative, but reverence to the law is. We dont want partisan Justices, but we want Justices who deal with the actual law and not make up shit to realize a partisan agenda. The left began to handle the law by simply making shit up and made adherence to the law a hallmark of conservative “partisanship”.

Is there a conservative equivalent to the embarrassing and orwellian history of commerce clause abuse? Or fantasy league jurisprudence like Roe?

We dont want partisans. I dont want Justices to ban abortion. I want them to acknowledge that there is nothing in this century old document about the issue and that we are therefore allowed to vote on that stuff.

To go mushy-middle, plagues on both their houses against supposedly equally bad “partisanship” is the kind of cowardness that brought us thursdays decisions and is the actual politicking that shows little regard for the law. You should be ashamed of this bullshit!

Valkyriepundit on June 30, 2012 at 10:45 AM

If Roberts passed said it is constitutional as a tax, and Obama says it is not a tax, does that mean Obama says it is unconstitutional?

Corsair on June 30, 2012 at 10:21 AM

Yes they have to choose: Pick your poison Obama. Tax or unconstitutional?

txmomof6 on June 30, 2012 at 10:46 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

Oh…I thought that was the end of the Tom-Kat marriage & beginning of the Suri fight.

Perspective is a wonderful thingy

workingclass artist on June 30, 2012 at 10:50 AM

Jazz, I take your point. Plus for those who say, Oh the liberal jusctices never take our side, whine, whine, whine. In this very opinion, the Medicaid Expansion was 7-2 in favor of the first limit on Congress’s spending power since the New Deal. I don’t care what anyone else here says, that is huge. And Roberts was able to get that somehow, someway when no other Chief Justice since FDR has done so. And don’t forget the not to recently past 9-0 rebuke of Obama in the Hosana case.

txmomof6 on June 30, 2012 at 10:50 AM

Specifically, “why didn’t I (or we) see this coming?”

MJBrutus on June 30, 2012 at 10:37 AM

…because the mandate wasn’t passed as a tax. Why would anyone see this coming from a Justice considered conservative? I still don’t know why he ruled this way and he needs to explain himself.
I would eagerly watch that interview.

Vince on June 30, 2012 at 10:51 AM

Browncoatone on June 30, 2012 at 10:43 AM

From Marbury v Madison:

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.

Read the entire decision for more specifics.

MJBrutus on June 30, 2012 at 10:52 AM

Jazz wrote:

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.

Whoa… Who made you law professor. What a POS statement.

From your bio at PJ (nice photo BTW)…

Jazz Shaw is a heretical, Northeastern former RINO

I call BS. I say you are still a Northeastern RINO.

kevinkristy on June 30, 2012 at 10:53 AM

this is why we lose: we lead with our chin. if you give them the opportunity they will break your jaw.

there is no reason to compromise with your own opinion.

IF someone else can persuade you with their opinion, fine. but never give up the fight if you KNOW you are right.

justice (cheif if you want) roberts, should be held in contempt, and impeached. he broke the law. the court does not write law which he did by telling us that “penalty” is “tax”. clinton could not identify the meaning of “is”. if no one knows the meaning of a word, how can anyone be held responsible for breaking any law they choose to not understand.

every one of the justices that voted to uphold this bill/law/act should be held in contempt and impeached for not doing their job of protecting the constitution.

stolen valor is not just a lie. you are taking credit for others sacrifices, their families too. you cannot impersonate a federal officer . . . how is this different.

obamacare/aca is not just a tax. you will now live the way government tells you to.

the kelo decision was not just about immenant domain/private property ownership. there is now no guarantee of personal property rights.

we now have no rights until they are decided by the supreme court.

mydogwonthunt on June 30, 2012 at 10:54 AM

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

hillsoftx on June 30, 2012 at 9:38 AM

Thanks for linking that.

Night Owl on June 30, 2012 at 10:57 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.

Except for the basic precepts, in the last 100 years the constitution has been so twisted and distorted that it original intent is not even discernible. The framers had very simple goals that they intended for the citizens of this new found country and I am sure that they never even considered that after it was passed it would be scrutinized to such a degree.
It’s the same thing I try and tell my Christian friends when they get so hung up on the technicalities of the Bible that they lose sight of what it actually means. As with the constitution, you don’t need scholars to interpret it’s actual intent. The only people who generally feel the need to interpret both documents to such a degree are usually trying to find a way to get around doing the things that it plainly tells you to do or the rights that it plainly establishes.

bandutski on June 30, 2012 at 10:58 AM

I’m sorry, but this is coming off as massively condescending. I too want justices to uphold the constitution and also expect that they know so much more than I do about it. But I don’t believe they do that but ruling on a law that doesn’t exist. Roberts did no one a favor. As Goldberg said, no one is assuming Roberts’ vote was anything other than political. You aren’t making that case here either.

I am ok with decisions I don’t like. I fully expected to be surprised from time to time. But surprises are not in and of themselves proof that the justices are performing their duties. I had a lot of faith in Roberts. I loved his confirmation hearings. I was prepared for him to disagree with me. I wasn’t prepared for a political decision, not from him.

Esthier on June 30, 2012 at 10:59 AM

…because the mandate wasn’t passed as a tax. Why would anyone see this coming from a Justice considered conservative? I still don’t know why he ruled this way and he needs to explain himself.
I would eagerly watch that interview.

Vince on June 30, 2012 at 10:51 AM

Just to be on the safe side, I think I’d like to wait till December to hear that explanation. :)

Night Owl on June 30, 2012 at 11:01 AM

Wow. Beautifully written, Mr. Shaw. We are very much agreed on “Stolen Valor”. Hate the decision, but get it.

Ladysmith CulchaVulcha on June 30, 2012 at 11:03 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

Mark Levin disagrees with you

ChrisL on June 30, 2012 at 10:34 AM

Moreover, the “holding” on the commerce clause has no bearing on the decision, so would never be anything more than dicta, to be discarded at will by future courts.

besser tot als rot on June 30, 2012 at 11:04 AM

Yes they have to choose: Pick your poison Obama. Tax or unconstitutional?
txmomof6 on June 30, 2012 at 10:46 AM

Does he though? They’re still denying that it’s a tax. And so what? Roberts gave obama what the MSM normally does, a way to have his cake and eat it too. He doesn’t have to admit that it’s a tax, cause Roberts already did that. Obama’s current statements aren’t undoing that. Just like he can “stay above the fray” in campaigning because he knows others will do the dirty work for him.

Esthier on June 30, 2012 at 11:05 AM

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.

roberts says his job is not to protect us from our votes. so when people vote for someone who lies to them and breaks the constitution “surprises” the voters, you are okay with that. that he and the other supremes should not be required to stop these politicians from violating the constitution?

mydogwonthunt on June 30, 2012 at 11:05 AM

From Marbury v Madison:

Read the entire decision for more specifics.

MJBrutus on June 30, 2012 at 10:52 AM

You must really hate him to suggest he read Marbury v Madison.

besser tot als rot on June 30, 2012 at 11:05 AM

Jazz Shaw says we have no right to complain due to our lack of legal education.
So let’s compare credentials.

HOT AIR: 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, blogger at Pajamas Media, Weekend Editor HotAir.com

WALL STREET JOURNAL: Worse still, Justice Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.

John Yoo, a professor at the University of California at Berkeley School of Law who served in the Bush Justice Department, is the author of “Taming Globalization” (Oxford University Press, 2012).

Hey, Jazz, is Mr. Yoo unqualified too?

kevinkristy on June 30, 2012 at 11:06 AM

I’d say that there are very good reasons why we think the way we do — reasons that escaped Roberts in his decision.

A penalty or fine is not a tax. It is a punishment for not doing something. A true tax — of the type which the Democrats have levied upon us — is not a punishment for failing to observe some desired societal behavior.

When a “tax” becomes a penalty for failure to engage in commerce one finds repugnant, we have such a loosey-goosey interpretation of the Constitution that it boggles the mind. Is this what our Founding Fathers wanted? Was Wickard v. Filburn ever truly Constitutional?

Four other members of the Court think “no”. Roberts, ostensibly a conservative, sided with the four stalwart liberals who say that the Government can force activity via a selective “tax”.

Ed’s post on a gun tax (requiring one to buy a gun or pay a penalty) is certainly one way to view this overreach.

unclesmrgol on June 30, 2012 at 11:07 AM

Sorry. “NOT of the type the Democrats have levied upon us”

unclesmrgol on June 30, 2012 at 11:08 AM

I am so disappointed that Roberts is so weak, and a politician. He crumpled like tissue paper to appease the press? Obama? his dinner party friends? I would be ok with the decision if it was constitutional. Read the dissents…Roberts is a total failure as a leader. And he may have just handed Obama the election.

JustTruth101 on June 30, 2012 at 11:09 AM

I’m sorry, but this is coming off as massively condescending. I too want justices to uphold the constitution and also expect that they know so much more than I do about it. But I don’t believe they do that but ruling on a law that doesn’t exist. Roberts did no one a favor. As Goldberg said, no one is assuming Roberts’ vote was anything other than political. You aren’t making that case here either.

I am ok with decisions I don’t like. I fully expected to be surprised from time to time. But surprises are not in and of themselves proof that the justices are performing their duties. I had a lot of faith in Roberts. I loved his confirmation hearings. I was prepared for him to disagree with me. I wasn’t prepared for a political decision, not from him.

Esthier on June 30, 2012 at 10:59 AM | Delete | Delete and Ban

To paraphrase Ronald Reagan, ‘It isn’t that they know so much more than you or I do, it’s that they think they know so much more that isn’t so’.

bgibbs1000 on June 30, 2012 at 11:11 AM

unclesmrgol on June 30, 2012 at 11:07 AM

I don’t pay for a home mortgage and am taxed for not doing so. Oh wait, I mean I don’t get a tax break and thus have to pay more to supplement the lost revenue of those who do. Come to think of it, it’s all the same thing.

MJBrutus on June 30, 2012 at 11:14 AM

I hear what Shaw is saying about no one side having the absolute corner on truth, and I get it that there has to be a final arbiter of constitutionality and the Supreme Court is it. But there are, or should be, limits on even the Supreme Court. While they are indeed the final arbiters of Constitutionality, there are higher authorities than Constitutionality. Language is far older and far more basic to humanity than our Constitution, as wise and revered as that document is. In deciding on issues of Constitutionality the Supremes are bound by things such as definitions. Words have meanings and the Supremes don’t have the right to just make up new definitions of words like “tax” on a whim. Sure, they have the power to do such things, as we’ve so painfully seen, but might doesn’t make right and Roberts abused his power.

csmats on June 30, 2012 at 11:15 AM

Jazz (and other fans of Roberts), perhaps this picture will help you understand the problem.

OhioCoastie on June 30, 2012 at 11:16 AM

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 the Constitutional ignorance continues.

Dante on June 30, 2012 at 10:21 AM

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

You are as great a part of the problem as John Roberts. This article serves no constructive purpose.

Mark Levin was right. This was a “lawless” decision.

creeper on June 30, 2012 at 11:20 AM

I have said it several times, that when I read a post on HA that sounds like it was written by a left leaning centrist, it’s almost always Jazz who wrote it. I can almost hear him weeping at the keyboard, feeling icky about associating with conservatives.

The law is certainly to the “right”. Your attempt to be wise and profound reveals you lack an understanding of the modern conservative (classic liberal) movement. To be correct in your analysis, you would have to conclude the US has not drifted markedly to the left…at a rate that is accelerating. I doubt you would make that claim. Well, what have we drifted from? We have drifted from the Constitutional foundation intended by the framers. That foundation is now well to our right, which means the law is to the right.

You also mistake “party lines” and ideology, which is incorrect. I do want judges to rule according to an ideology…the conservative ideology, which is Constitutionally based, not made up of whole cloth, like decisions from the left.

With weak sauce leadership and analysis like this coming from the supposed right, it’s no wonder we’re losing. You may want to join hands and sing kumbyah with the left, but the only way that is happening is if you submit. Because they are at war with us. It’s that simple. We will bow or win, there will be no getting along to get along. We are where we are, in large part, because squishes want to avoid the hard ideological questions THE LEFT IS FORCING ON US, LIKE IT OR NOT (yes, I am yelling)!

The Hammer on June 30, 2012 at 11:20 AM

I have said it several times, that when I read a post on HA that sounds like it was written by a left leaning centrist, it’s almost always Jazz who wrote it. I can almost hear him weeping at the keyboard, feeling icky about associating with conservatives.
The Hammer on June 30, 2012 at 11:20 AM

Yep. HotAir has been taken over on the weekends by a leftist.

kevinkristy on June 30, 2012 at 11:24 AM

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.

I agree, except that conservative “ideology” (which is not an ideology) is for republican constitutional government and the rule of law.

The left believes in paradise on earth by any means necessary and to hell with the Constitution, individual liberty and private property.

For my money, I’ll take a president who gives us 9 Thomases or 9 Scalias, thank you.

Rixon on June 30, 2012 at 11:24 AM

The reason it didn’t go anywhere was because of a massive revolt from the American people. If not for that, I feel pretty certain that a lot of our elected representatives would have been more than willing to push it through. (Also, I admitted that I really didn’t learn my lesson until Obama.)

Night Owl on June 30, 2012 at 10:43 AM

Fair enough. And I think you’re right about what stopped shamnesty … for then.

David Blue on June 30, 2012 at 11:24 AM

Crap. Just lost a long post due to auto-refresh. Let me try again….

I tried to read through all of the previous comments prior to posting, but I couldn’t do it. It’s amazing to me that so many commenters seem to think themselves experts in constitutional jurisprudence, when their comments indicate otherwise….

That said, good article, Jazz. But I think you overestimate the level of knowledge that most Americans have of the constitution and constitutional jurisprudence. I never had an 11th grade civics class (or any other grade, that I recall) in which I learned about the constitution in great depth. And I attended high school (at what I consider to have been an excellent school) in the ’70s. I suspect that the civics class that was once a staple in U.S. schools has long been abandoned. So, I didn’t learn about constitutional jurisprudence until I attended law school many years later.

At any rate, I haven’t read (and likely never will) the nearly 200-page decision on the PPACA. But I’ve read a lot of analysis of the decisions, and I think I understand why C.J. Roberts ruled the way he did. The simple fact is that the SCOTUS has always endeavored to find grounds to uphold laws. That is precisely what happened here.

It’s disappointing to me to read all the comments here denigrating C.J. Roberts for this decision. Sure, it’s tempting to play Monday-morning quarterback and decry the decision because it wasn’t what we expected or wanted. But the charges being leveled against Roberts are, IMHO, grossly unfair and a sad state of affairs.

Syzygy on June 30, 2012 at 11:25 AM

The lesson in all of this for me, is that we need to implement a graduated tax code, with absolutely no deductions or exemptions. Congress has the power to trade tax favors for votes. They have the power to rule our lives in limitless ways by taxing what they don’t want and exempting what they do want from us. This case confirms that power, but it also shuts down some of the avenues for other justification for Congressional abuse (the commerce clause and the necessary and proper clauses have been uphold as being bounded by the enumerated powers of Congress). If we the people are serious about removing the fangs from Fed-zilla, this is the path we must follow.

MJBrutus on June 30, 2012 at 11:25 AM

This law not only infringes on personal freedoms while shifting “unprecedented” control of commerce from private to public sectors, it extends the policy of wealth redistribution massively. Right now without this law, through various income tax credits, low income working taxpayers with qualifying children routinely don’t pay any income taxes at all when they file their 1040s because the get everything withheld from their pay for income taxes back PLUS SOME. Their tax filing is a payday. They don’t pay. They get paid. And the plus some, more often than not, not only reimburses them for their social security and medicare withholding, it provides even PLUS MORE ON TOP. These individuals now without any income tax liability, reimbursed for social security and medicare premiums will almost certainly now get their insurance premiums or penalties for free as well, MORE PLUS MORE. Look for EITC benefits to be increase to cover the insurance cover. Fine, if that’s what we want to do. If we want to redistribute wealth, the tax code is a pretty efficient way to do it. Just don’t tell me that the US is cruel, heartless and awful to those we consider less fortunate.

Almost 50% of US taxpayers aren’t. That’s the devils workshop for more entitlement culture in the future, never less.

limmo on June 30, 2012 at 11:26 AM

Jazz Shaw writes for the Moderate Voice: (a leftist rag posing as moderate independent liberals). Basically it’s editorial consists of mocking conservatism.

Jazz Shaw is an Internet marketing professional, author of unseen technical manuals, US Navy veteran and former member of the Republican Party from 1976 until 2005, now a registered independent. A veteran of several political campaigns in New York, he now pursues his avocational interests as a pundit wherever his singing will earn him a supper.

kevinkristy on June 30, 2012 at 11:29 AM

November 6th is OUR time. My take.

kingsjester on June 30, 2012 at 11:31 AM

Syzygy: The Founding Fathers intended the Constitution to be a document understandable and interpretable by the common man. I’ve seen the arguments that laypersons presume too much when they presume to understand constitutionality, but I submit that that condition arose only because the so-called “experts” like Supreme Court justices have worked mightily to make it that way and not because it is inherently so.

csmats on June 30, 2012 at 11:32 AM

Yes they have to choose: Pick your poison Obama. Tax or unconstitutional?

txmomof6 on June 30, 2012 at 10:46 AM

No he doesn’t have to choose, because Roberts didn’t choose, except for choosing to uphold Obamacare.

The court said Obama was not a tax, otherwise the case would not have been ripe for judgement, and then that it was a tax, which made it constitutional.

Since the court said that this is a tax when it pleases us and not a tax when it pleases us, as long as the result supports Obamacare, Obama can do the same.

David Blue on June 30, 2012 at 11:35 AM

as roberts stated, his job is not to protect us from our votes…

what happened in 2010. we voted for a different outcome from the previous one. we decided we did not like obamacare, in an overwhelming win for republicans.

all roberts had to do was tell congress that they could not penalize us into action, and hold the aca unconstitutional.

if congress dicided that they wanted to provide the means for health care, they could raise a tax based on income to provide for that.

mydogwonthunt on June 30, 2012 at 11:37 AM

RINO Jazz Shaw in 2008, pushing for Christie Todd Whitman as McCain’s Veep.

McCain wants to make sure he captures the middle. (The hard core conservatives don’t care much for him, but they like Obama far less, so they’ll swallow their angst and vote McCain.) With all this in mind, McCain could go for a serious dark horse from the moderate stable and pick former New Jersey Governor and EPA secretary Christie Todd Whitman. Again, I don’t see it happening, but it would certainly be a bold choice.

kevinkristy on June 30, 2012 at 11:39 AM

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

Free from the “shackles of ideology”? Are you kidding me? No one is free from their own beliefs. Roberts putting the so-called integrity of the Court above the Constitution is hardly something to crow about. Being free from the shackles of politics for a person who was supposed to be a strict constructionist really means throwing away your own Constitutional principles in order to uphold a progressive ideology.

Jazz, your post is a contortion much like the one Roberts made when ruling to uphold the ACA based upon what the bill itself clearly states it is not.

Free from the shackles of ideology. As a student of progressive history and propaganda I can safely say you just outed yourself.

Cary on June 30, 2012 at 11:41 AM

Jazz Shaw: I do not disagree about Justices following the law, but the Obamacare mandate should have been struck down not rewritten. Sometimes courts need to strike things down and the mandate was wrong. What Roberts engaged in was judicial activism to appease how he will be perceived.

As for Stolen Valor, I agree that should have been a 9-0 decision upholding free speech (and condemning the liar on moral grounds only).

Mr. Joe on June 30, 2012 at 11:42 AM

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.

Jazz

Retarded people may like surprises, too. You failed to explain which part of Roberts (idiotic) opinion “surprised” you in a good way, as a proper constitutional reading? The part where he invented a constitutional right for the narrowest of congressional majorities to lie repeatedly about what a piece of legislation actually says and what the predictable result of the law would be, and then effectively re-wrote the bill to conform to that right, without sending it back to congress to write a bill which actually does meet that standard?

Was that the fun surprise that you liked so much?

Jaibones on June 30, 2012 at 11:53 AM

I think the purpose of the law and constitution have been misconstrued here. We are not here for the law and constitution, it exists to describe the boundaries and limits that we (ALL Americans) are willing to use to maintain an amenable relationship with each other.

Obama-care is a law that says “We are going to force you to do what we want”. (Think “death panels”) The opposition says “We want our freedom”. It is very bad law and the kind of thing that leads to violence in a country. People are willing to fight and die for freedom. Shoot… people are willing to fight and die so that other people have freedom. That sounds far fetched, but what happens when IPAB makes a ruling that people think is racist?

Passing a law of this magnitude without a large majority was excessively stupid. Upholding such a law makes you an accessory to stupid. But being stupid is constitutional, and being constitutional doesn’t mean it is wise.

Roberts could have said “This doesn’t seem wise”, but instead he gave us “You want stupid, you got stupid.” Color me unimpressed.

Bear on June 30, 2012 at 11:54 AM

I just don’t get it. How is the rewriting from the bench of a law passed by congress (to make it conformable to the constitution) constitutional? Guess I’m not smart enough to understand. This Roberts confugle shows us once again just how far down the tubes we’ve gone.

limmo on June 30, 2012 at 11:54 AM

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

What a silly statement.

That’s all they ever were, and all they are, and all they will ever be.

That’s why different parties select their own nominees.

Otherwise it would be unicorns picking elves to serve as hippogryphs to rule on chimaeras.

We need people with clear views to serve for specific reasons and ends.

It is always “partisan”, it is always “political” because humans are partisan and political creatures.

Fantasy is fun, but absurd when it comes to forming reality to your will.

And that’s what the courts, the Congress and the executive branches all do, all the time.

Because people want things done. Not imaginary abstractions debated.

profitsbeard on June 30, 2012 at 11:58 AM

If you agree that Roberts did the right thing (and rewrite the law from the bench) you also agree with the three liberals who NEVER agree with the constitution. You can’t have it both ways.

kevinkristy on June 30, 2012 at 11:59 AM

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

November 6th is OUR time. My take.

kingsjester on June 30, 2012 at 11:31 AM

Exactly. And then again in 2014, 2016, 2018……

Night Owl on June 30, 2012 at 12:02 PM

One person that would appear to be mired with an 11th grade civics education appears to be CJ Roberts. He somehow found the power to act as an unelected legislator and write a tax into a law where none existed. Then he followed that brilliance by abdicating the co-equal status of the judicial branch. Apparently the legislative and executive branches can impose unlimited tyranny until voters get a chance to throw them out. I guess Roberts sees his role as an observer of tyranny.

The only ideological high ground that matters is upholding the Constitution. Otherwise, our Constitutional Republic will cease to exist.

BigOil on June 30, 2012 at 12:03 PM

Must Read from Wall St Journal Today: (John Yoo)

White House judge-pickers sometimes ask prospective nominees about their favorite Supreme Court justice. The answers can reveal a potential judge’s ideological leanings without resorting to litmus tests. Republican presidential candidates similarly promise to appoint more judges like so-and-so to reassure the conservative base.

Since his appointment to the high court in 2005, the most popular answer was Chief Justice John Roberts. But that won’t remain true after his ruling on Thursday in NFIB v. Sebelius, which upheld President Barack Obama’s signature health-care law.

Justice Roberts served in the Reagan Justice Department and as a White House lawyer before his appointment to the D.C. Circuit Court of Appeals and then to the Supreme Court by President George W. Bush. Yet he joined with the court’s liberal wing to bless the greatest expansion of federal power in decades.

Conservatives are scrambling to salvage something from the decision of their once-great judicial hero. Some hope Sebelius covertly represents a “substantial victory,” in the words of conservative columnist George Will.

Worse still, Justice Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.

Justice Roberts too may have sacrificed the Constitution’s last remaining limits on federal power for very little—a little peace and quiet from attacks during a presidential election year.

Given the advancing age of several of the justices, an Obama second term may see the appointment of up to three new Supreme Court members. A new, solidified liberal majority will easily discard Sebelius’s limits on the Commerce Clause and expand the taxing power even further. After the Hughes court switch, FDR replaced retiring Justices with a pro-New Deal majority, and the court upheld any and all expansions of federal power over the economy and society. The court did not overturn a piece of legislation under the Commerce Clause for 60 years.

If a Republican is elected president, he will have to be more careful than the last. When he asks nominees the usual question about justices they agree with, the better answer should once again be Scalia or Thomas or Alito, not Roberts.

Full Story

kevinkristy on June 30, 2012 at 12:03 PM

if you want insurance to pay for health care buy it.
if you do not want insurance, suffer unless you can pay the bill.

pass this law: when you see a doctor/hospital you provide your s.s. #, and the government witholds such percent of your income to pay that medical bill. take it from the percent we already pay for medicare, medicaid, workers comp insurance, medical coverage from auto insurance, from homeowners insurance, from current city and county and state taxes we all already pay.

mydogwonthunt on June 30, 2012 at 12:06 PM

I think Justice Roberts did everyone a favor

Roberts did me no favor.

He demonstrated why Republicans are the stupid party and why they lose even when they win elections.

American socialists play by no rules at all. They unapologetically and boldly take maximum advantage of every opportunity to advance their agenda and goals. They have been doing this for several decades. Most recently they rammed through Obamacare against all opposition and popular opinion, seeking no input, accommodation, or compromise with Republicans. And it will probably survive and irreversibly entrench itself, largely because mushy moderate Republicans cannot bring themselves to do what is necessary to oppose people who ignore rules.

Roberts, who by all indications thought Obamacare was, as written, unconstitutional, could have with a stroke of a pen gotten rid of the mess and stopped the socialist cancer before it metastasized, as it is designed to do. For chrissakes he even had a solid majority of public opinion backing him. But he did not do that out of some misplaced sense or honor, or something. He did something no left-of-center justice would have ever done, what no left of center justice has done on a major decision in my memory. He sided with the opposition.

And that’s why Republicans even when they win still find a way to lose. In private American socialists laugh and think they are fools, while publicly praising such self destructive stupidity. They play by no such unilaterally self imposed Marquess of Queensbury rules and sense of propriety.

The GOP is the party of stupid. Not all Republicans are self destructively stupid, but there are enough of them to enable Dems to prevail most of the time and get most of what they want, step by step, ratchet by ratchet.

Even if Romney wins and the GOP takes the Senate and House I will be very surprised if they manage to actually repeal Obamacare. They will go through the motions but they will lack the will to do what is necessary. Enough GOP members will get wobbly knees in the face of vicious opposition, just as Roberts did, to torpedo the effort. And when it doesn’t work out the rest of the GOP will shrug and say, “well, we tried”.

I hope I am wrong, but based on the past performance of the GOP I have little reason to think I will be.

farsighted on June 30, 2012 at 12:08 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

Spot on.

farsighted on June 30, 2012 at 12:12 PM

Maybe CJJR is just petty and jealous of the fawning coverage that Kennedy has been getting the last 20 years?

……or……maybe he’s just a closet Progressive hiding in Conservative clothing (like the man that appointed him in 2005).

PappyD61 on June 30, 2012 at 12:13 PM

as roberts stated, his job is not to protect us from our votes…

mydogwonthunt on June 30, 2012 at 11:37 AM

That suggests that the court should not strike down legislation, or at least that it should be very cautious in doing do.

What did this amount to in practice this week? Liberal federal legislation got whatever rewriting it needed to be declared constitutional. Obamacare was upheld. Conservative state level legislation was demolished. Arizona SB 1070 was three quarters blown away, of what was under challenge, and all that was left was permission for Arizona to phone the feds and ask for help, which help will not be coming.

The job of the court is not to protect the people from federal and liberal votes, according to John Roberts, but no such restraint applied to the court in its dealing with conservatives and the states. Illegals can roam Arizona freely now, with the Supreme Court and the will or whim of the federal Chief Executive on their side, and the state government is powerless to protect its citizens from violations of its own laws or from violations of such federal laws as President Obama chooses to have left unenforced.

This is not judicial restraint. This is lawlessness, with a cover of official power.

David Blue on June 30, 2012 at 12:14 PM

farsighted on June 30, 2012 at 12:08 PM

Right on!

The RINOs keep arguing that this is somehow a fair fight. It’s not.

The libs lie cheat and steal – knowing it’s all covered up by the lib media.

Look how Obamacare was implemented – via backdoor deals, late night votes, reconciliation, blocks to amendments, procedural trickery, payoffs (louisiana purchase). Etc.

And then our side tries to justify it by saying, “We’ll get ‘em next time.”

You think this Roberts vote changes anything? Next time he makes a decision they don’t like, he’ll be executed in the press – called a hack, etc. Just like McCain. All that sucking up to the media pre-2008 run, how’d that work out? They turned on him like a rattlesnake.

kevinkristy on June 30, 2012 at 12:18 PM

Roberts is a craven shyster unworthy of his position, as are teh other 4 who voted to affirm. Krauthammer, on the other hand, is simply a fool. His “take” is just spin.

Quartermaster on June 30, 2012 at 12:22 PM

Term Limits.

mittens on June 30, 2012 at 12:25 PM

BigOil on June 30, 2012 at 12:03 PM

Thank you for that.

All this pontificating about Roberts playing the “long game” is palaver at best, and deeply misleading at worst. The long game is not the “integrity” of SCOTUS. It is not the status of Obamacare. It is not even whether Barack Obama gets elected to a second term.

The long game is the Constitution, and the continuance of the principles of the country as founded. The long game is liberty.

Roberts essentially trashed the Constitution yesterday. He removed the last remaining restraint on the power of the Federal government to control behavior. It don’t care what he did with the Commerce Clause; that’s a fig leaf. Roberts established a truly dangerous precedent with his ruling.

Roberts had the opportunity of a lifetime; to draw a line in the sand on principle (not ideology, not politics, principle). No matter what happened in the short term with Obamacare and Obama, the principle of limited government would have been strengthened with a proper ruling. Instead, Roberts caved to…whatever. The whatever doesn’t matter. The cave does.

As Mayor Kane, the Machiavellian protagonist of The Boss stated in episode 6: “When Truman nuked Japan, and when Lincoln sent cousins to slaughter each other, they didn’t worry about opinion polls.”

Now that’s some good writing.

Mr. Arkadin on June 30, 2012 at 12:32 PM

John Yoo…

Full Story

kevinkristy on June 30, 2012 at 12:03 PM

Professor Yoo, as usual, gets it.

farsighted on June 30, 2012 at 12:34 PM

In sorry Mr. Shaw but Roberts screwed us all. He inflicted great damage on the Constitution. People who are not law scholars could see the flimsiness in his bs ruling/opinion. The man rewrote the law in an attempt to save the courts reputation and legacy when in fact he sullied instead with this decision. He voted to up hold tyranny by calling it a Tax instead of a mandate. He gave the left another tool to bludgeon us with and they will. Never in our history has there been a tax for non activity until Roberts made it so. He put politics above the Rule of Law.

He’s a shyster and should resign in shame. How can the man even look at himself in the mirror? I suggest you listen to Mark Levin’s first hour from yesterday. He puts the final nail in the coffin of all this “great victory for limits on the Commerce Clause” spin. He didn’t limit anything. He expanded the welfare state and screwed all of us who just want to be left alone to take care of ourselves and our families. He’s a traitor. I’m tired of playing the lefts games. They lie and cheat and steal while we continue to play paddy cake. If we’re going to take this country back, we have to start by beating them at their own game.

jawkneemusic on June 30, 2012 at 12:36 PM

The Supreme Court is hopelessly politicized. The Democrats cast that die with the Bork nomination and polished it off with the Thomas nomination. Electing Presidents who will appoint justices with the “right” ideology (whatever that is) is an ugly and wholly unreliable strategy for conservatives.

The better approach is for the Congress to start legislating limits on the Federal Courts — pass laws decreeing what sorts of cases the courts may or may not decide and indicating what standards (e.g. the rational basis test, the Lemon test, the shock-the-conscious test) the courts may or may not employ. Yes this will be messy and of course it will be challenged. But it will give the Supreme Court plenty work to do in defending itself and in defining and explaining its role in government — which leaves it that much less time to screw up everything else.

Jack Squat Bupkis on June 30, 2012 at 12:38 PM

And remember the poor shlubs earning $30k a year that cannot afford health insurance. Now he’ll not only NOT have that coverage, but he’ll be taxed on something he does not have and cannot afford.

This point needs to be hammered home because it is true.

Shame on Roberts and Obama.

Key West Reader on June 30, 2012 at 10:23 AM

yep …
and now congress can order ppl to eat their peas or pay a tax …
or own a gun or pay a tax … or do whatever our “leaders” want or
pay a tax … shesh

conservative tarheel on June 30, 2012 at 12:39 PM

Nope. The people who supported Obamacare, the people who rammed it down our throats, and the “constitutional scholars” who twisted words around to mean something they didn’t, are all traitorous scumbags who care nothing about the country.

None of us is under ANY obligation to follow any of this horrific act. If we let it stand, we will have well and truly lost what the country was founded for, and we will have well and truly redefined what it means, at its core, to be American.

People got upset at Sarah Palin for talking about the “American part of America,” but I think she was right. Too many people that hold American citizenship think it’s perfectly acceptable to make the government take from other people to give to them so they don’t have to work as hard, but these people are not American.

Andy in Colorado on June 30, 2012 at 12:42 PM

What nonsense, there is nothing partisen about the 9th & 10th Amendments, or enumerated powers, which should spell out freedom of choice in medical care for free Americans. And wgatever happened to the “grounbreaking” Roe V Wade case, remember a woman’s right to her body. If that isn’t a precedent what is, one that argues against government power. Right Shaw, forget it all, let’s be pragmatic, the euphemism for no principles.

arand on June 30, 2012 at 12:47 PM

Ding. Ding. Ding.

Toss in a percentage of conservative writers praising him for this tortured decision and it’s a fait accompli.

BadgerHawk on June 30, 2012 at 10:21 AM

I wonder what’s the point of blogging like the above if the end results is just parroting republican talking points?

This type of posting is supposed to increase traffic to this blog? Chief Justice John Robert’s did not interpret the United States Constitution – his only duty – his only job description. Instead he made law from the bench.

Honestly, stop peeing on everyone’s leg Jazz, and tell them it’s raining.

Dr Evil on June 30, 2012 at 12:47 PM

as roberts stated, his job is not to protect us from our votes…
mydogwonthunt on June 30, 2012 at 11:37 AM

So what is the job of the court then if not to strike down blatantly unconstitutional law? What Roberts did was at best a derelict of his duty, at worst upheld tyranny because he truley believes the Federal government has domain over our bodies.

It IS the courts job to save us when we have a government who lies it’s a$$ off to get laws passed that are unconstitutional. This was a slam dunk case. Roberts had to rewrite the bill in order to get his desired outcome so he could say “keep us out of it”. If that’s the case he’s an even bigger fraud and a coward then first thought. These are people lives he’s just destroyed. We’re going to be living with this terrible Precedent that the Feds can tax us for non economic activity unless we Amend the whole Constitution. All because A) Roberts wanted to sit on the fence or B) because he was more concerned about the politics of his decision or both. Either way you cut it, it’s shameful and will go down as one of the worst, stupid and flimsiest opinions in American History. The man had a chance to do the right thing and he balked.

jawkneemusic on June 30, 2012 at 12:48 PM

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.

As well it should. As much as Kennedy is often maddening, in this case he got it right during oral arguments. ObamaTax fundamentally alters the relationship between the citizen and the government in multiple ways. Citizens now become dependent upon the government for their health care and citizens are now subject to either having to engage in a mandatory, government specified, transaction throughout their lives or pay a penalty (law does not call it a tax) simply for the mere act of being. The consequences and side effects of this alteration are going to be profound. Thus, regardless of his decisions in previous cases, this is, to use Lonesome Joe’s words, a BFD. It doesn’t matter if he ruled against tyranny in two out of three cases; if he rules for tyranny in the third case, as he did here, then we absolutely are correct in disregarding any previous good he has done. Just as if you find out that a world famous philanthropist who has saved several people has become an axe murderer, you don’t excuse him by saying, “he saved so many people with this act and that act, cut him a little slack on the axe slaying of his wife”, you don’t say, “well he ruled good on Citizens United and [you can't even name the others], so cut him a little slack in his decisions to throw Arizona open to invasion and the citizens of the country to becoming slaves to the government health care system.”

So, you start with this flawed premise and continue from there:

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.

The Constitution is not hard. It was not written to be a hard document and the founders provided volumes of clarification for what it means and why that meaning is necessary to the preservation of a Republic and a free people. Where you go astray is that for too many years, sophists have used rhetorical flourishes and twisted logic to distort the clear meaning of the Constitution into a twisted maze of “emanations and penumbras” that allow statist controlling nanny-state supporting legislators to turn the commerce clause and general welfare clause into get out of jail free cards for every intrusion into private lives and suppression of personal and corporate liberty they can imagine. John Roberts just gave them another precedent and loophole from which to work and stood the limitations on the government ability to tax on its ear in a very twisted logical pretzel.

So yes, who appoints judges is critical, because we know that the liberals who get into office appoint judges who view the Constitution only as an ancient piece of parchment that requires sophistry and flowery language in their decisions that tell us the Constitution does not mean what it clearly says, but that it really means that the federal government has unlimited power to tax, regulate, and control in order to lead us to that promised land of Utopia with Unicorns and Skittles for all.

AZfederalist on June 30, 2012 at 12:49 PM

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