Conservatives have been rightly disappointed with the Supreme Court ruling to uphold ObamaCare, but that disappointment has been all the more bitter because the case has been full of unpleasant surprises. Conservatives believed they had two objectives to get ObamaCare overturned: convince a majority of the justices there was no “limiting principle” to the individual mandate that would excuse it from setting precedent on the Commerce Clause, and convince Anthony Kennedy (the assumed swing vote) that because there was no limiting principle, the law could not survive an accurate reading of the Commerce Clause.
They did both, and yet still lost the case, thanks to Chief Justice John Roberts’s decision to elevate politics over jurisprudence. But now it’s time for Roberts to confront disappointment himself. Roberts believed he was doing two things by upholding ObamaCare: he was settling the issue of whether the mandate is a tax (it is), thus protecting the Commerce Clause, and he was preventing the further delegitimization of the Supreme Court by the Democrats, thus improving its general reputation. He failed on both counts.
Roberts had good reason to believe his decision to surrender to pressure from the Obama administration and reduce the Court’s power as a supposed equal branch would at least stop the assault on the Court. After all, he held up his end of the bargain. The New York Times waited all of two days to rough Roberts up some more:
The Court’s conservatism calls to mind the defiance of the Court in the 1930s when it regularly struck down New Deal statutes during the Great Depression. But there are important differences. The 1930s Court saw itself as preserving established precedents and principles. The Roberts majority does not have that conservative role. Nor does it play the role of the 1960s Court, whose rulings reinforced a relatively liberal trend in politics.
The current conservatives are not preserving a tradition or articulating a new social consensus. Instead, as the legal historian Robert W. Gordon put it, they have regularly been radical innovators, aggressively stepping into political issues to empower the Court itself.
Roberts extended an open hand to the administration and its allies only to find, as a favorite White House metaphor would have it, a clenched fist. But he shouldn’t have been surprised–nor should he be surprised to read the recent polling showing his Court to have lost some of the public’s respect. Apparently, bowing to pressure and issuing a ruling consistent neither with constitutional law nor public opinion won’t endear him to the people.
But Roberts’s ruling should have at least settled the tax issue. After all, the bill only survives because the mandate must be labeled a tax. When White House Chief of Staff Jack Lew made the Sunday morning talk show rounds, things sounded like they were heading in the right direction for Roberts’s authority. On “Fox News Sunday,” Lew said, “When the Supreme Court rules, we have a final answer.”
So the mandate is a tax, then? Not so fast. Lew meant the constitutionality of the law is settled. As for whether it’s a tax, according to Lew, the Court “said it didn’t matter what Congress called it. It was a penalty for 1 percent.” That is most certainly not what the Court said, but Lew was only repeating what the administration has been saying since the ruling. Press Secretary Jay Carney told reporters a day after the ruling that “You can call it what you want.” But didn’t Roberts call it a tax? Here Carney unleashes the chutzpah:
“With regard to the penalty as was discussed by Chief Justice Roberts in his opinion, for those who could afford health insurance but choose to remain uninsured — forcing the rest of us to pay for their care — a penalty is administered as part of the Affordable Care Act.”
Conservatives may find this maddening, but the worst part of the Carney story is how the reporter framed the debate. The White House, he wrote, “is aggressively fighting back against Republican claims that ObamaCare contains a tax increase.” (Italics are mine.) Far from settling the question, then, Roberts’s decision has rendered the Court’s opinion irrelevant. The debate about ObamaCare continues as if there were no Supreme Court ruling, only now there’s no judicial oversight waiting on the horizon. Roberts seems to have accomplished nothing with this ruling except diminishing the Court’s standing.
Its kinda like negotiating with the Palestinians. Flowing rivers of Israeli concessions ineluctably generate progressively more obstinate Palestinian recalcitrance, ever escalating demands, genocidal propaganda and terrorism but Israeli's are always urged to "take risks for Peace" and inevitably at least some brilliant, tough and generally shrewd Israelis (PMs, generals, intelligence chiefs and the like) bite. No reasonable person could doubt Robert's brilliance as a jurist and one might have thought him a sufficiently judicious (if you will) Washington operative to realize that there was little to be gained submitting to "Elite" left wing thuggery or "protecting the institutional integrity of the Court" by writing thoroughly incoherent, radically activist and extravagantly Political opinion. In the event his cowardice or at least (and on this I'm willing to give him the benefit of the doubt) naiveté has proven truly remarkable. n nThe question going forward is whether he will recognize just how much of a fool he has made of himself and get back to doing what he's good at (making principled and rigorous Constitutional rulings – and throwing out racial quotas, the now superfluous and unconstitutional Voting Rights and Act and the remaining unconstitutional restrictions on political speech and trying to actually continute to build on his Commerce Clause reasoning (whether binding or not) or pursue further the futile task of trying to ingratiate himself with the left (or "protecting the Court's apolitical character"). Stay tuned.
John Rogers meet Roger Taney : another" cringing subtle tool of … power "
Almost as big a blunder as Sharon's decision to unilaterally leave Gaza. Never rely on good will from the left.
Agree, except Sharon's dangerous and stupid abandonment of Gaza to the terrorists was on the Bush/Rice watch. They left the corridor Gaza-Egypt border under the surveillance of mostly European guards who ran at the first sound of a firecracker. Blundering is a universal apolitical characteristic of all of our governments.
Welcome to the Post-Modern Presidency. Obama's revered mentor at Harvard was Derrick Bell, a founder of what is called critical legal theory, a scarifying blend of "Alice in Wonderland" with the "Autobiography of Malcom X." n nThe sort of malarky that Carney spouts daily is very small potatoes compared to what elite students at Harvard Law School are used to proposing. I assure you they will not break a sweat arguing that what the Supreme Court said in FBIC v. Sebelius is, surprisingly, NOT what the Supreme Court said in FBIC v. Sebelius. It doesn't matter whether the decision is printed in the Federal Register, engraved in marble on the doors of the Court, or whispered in the ear of a drunk sleeping it off on a park bench. It might as well be a certain stain on a sheet of toilet paper. In fact, for a really limber post-modern critical-studies theorist, devising such a denial of the obviously true is not much more challenging than scribbling something or other on a cocktail napkin while sitting on the toilet during a bathroom break. n nThe wonderfully liberating thing about a post-modern approach to legal argument is that both logic and evidence, which, let's face it, can be wearisome, may be left at the door. All you need is an "empowering narrative." Any old sob story you can broach with a straight face will do. Carney's narrative? Why it's plain as paint: "Free riders are being penalized for the sake of FAIRNESS." Have you got that? Do you read me? Are we quite clear here? That half-witted reply is ALL he or — any Democrat — needs to answer ANY and EVERY question put to him on the subject. FROM HERE ON OUT. Don't sputter "But . . . but . . . but . . . ." It would be pointless. You will never learn anything more than that. Just get used to it. Spare yourself frustration and heartache. You'll live longer.
We conservatives have underestimated Obama. He may be a dreadful POTUS but he is a skilled propagandist. There is a reason that he is in TV almost every day. Tell lies often enough and people begin to believe them. Very dangerous indeed!
Seth, it is far worse than you say. Roberts only said that it could be upheld as a tax. Scalia and Thomas and Allito–names conservatives revere–say it is NOT a tax. Who do you believe? Roberts' sophistry, or the clear arguments and scholarship of Scalia? The fact it is, it is NOT a tax. It is a penalty, just like Scalia–and Jack Lew–claim. Scalia and Obama agree. It is NOT a tax. Obama was given an absolute gift by Roberts: he can claim the benefit of the Roberts "tax" theory" but then persuasively say that it actually is not a tax, and even Arch Conservative Clarence Thomas and Antonin Scalia agree with me!
In fairness to the New York Times, they did signal their dissatisfaction (or abject fear) about the commerce clause in the <a href="http://www.nytimes.com/2012/06/29/opinion/the-medical-care-ruling-risks-ahead.html?_r=1&ref=opinion&pagewanted=all">initial post-Obamacare editorial. nThe way the decision was framed could make it harder for Congress to pass laws based on the Constitution’s commerce clause, which has been at the foundation of some of the most momentous laws and court rulings in American history. nThere's no sense there that some of those "momentous" rulings may have been overreach. nWhat is clear in both editorials is that the New York Times respects neither law nor process nor institution, but only its own sense of right. As the current Executive Editor of the paper brazenly claimed, in her house growing up, the Times was "<a href="http://online.wsj.com/article/SB10001424052702303745304576361363822571574.html" target="_blank">the absolute truth." The New York Times and Abramson deserve each other; and they both deserve our scorn. n nThe way the Times lashes into the "radical" conservative justices is hypocritical on another count too. Not even a month ago the Times was touting the necessity of a strong court for a democracy. <a href="http://www.nytimes.com/2012/06/06/opinion/a-glimmer.html" target="_blank">Here: n nSome Likud hard-liners have proposed legislation that would override the court’s decision and legalize Ulpana retroactively. That is a terrible idea, not least because it would weaken the court, a vital institution in any democracy. Mr. Netanyahu has rightly urged lawmakers to oppose the measure when it comes up this week and has threatened to fire any government minister who votes for the bill. n nOf course, the Times only endorses a strong court or strong government when those institutions worship at the same altars as the Times's editors do. Otherwise those institutions are threats to freedom and all that is good in the world. n nIs there any institution that can match the cynicism of the New York Times?
Until our conservative elites can live without the never to be received approbation of the NY Times, etc. nothing in this country will improve. n nRoberts has shown himself a craven fool, his name will be in the history books alright, next to Taney and a few other ignobles. n nIf the story about him changing his mind is true, he's a disgrace; if it's a lie he is truly a miserable failure. n nHowever, he makes a fine helpmeet to President Obama, both men have excellent skills in infuriating allies and adversaries at the same time. n nLet's hire a few folks NOT from Harvard, the recent batch of that lot don't seem to be working out very well.
If the Supreme Court says it's a tax, then it's a tax. No matter what the President's men call it. Roberts hasn't failed by calling it a tax. Politics – on both sides of the political divide – is failing Americans by refusing to traffic in truth, and preferring to use whatever manipulative language responds to polling data. That's why I've become an Independent.
Nothing in Justice Robert's Chief Justiceship will distinguish him like the leaving of it.
I've always felt uncomfortable with 'life' appointments. Many political constituencies are seriously considering limiting the terms of various elected representatives. Sometimes the consideration is to shortening the term of office and sometimes to limiting the number of terms of office. The presidency was so limited way back to two terms. After Robert's great blundering vote here, it may be time to have some limit on the Supreme Court. Do we have to put up for life the decisions of senile or stupid or just plain obnoxious or incorrect judgements of every member of the court? Especially if they are so young that few of us will ever see the end of them on the court? Time for a change here. Not now, but a few weeks ago at least.
Finally, an intelligent observation! nOne solution could indeed be Supreme Court term limits. When the system was conceived two centuries ago, judges did not live until the age of 80 or 90. The most recent four nominess might be around for 40-50 years. That's too long.
I am reminded that the court's 'independence' of outside pressures comes as a result of the permanence of the appointment to the bench. Likewise, the King and Queen of the US would have lifetime appointments. So we now have nine Kings and Queens of the US. George Washington is turning in his grave.
Let me tell you how it will be nThere's one for you, nineteen for me n'Cause I'm the taxman, yeah, I'm the taxman n nShould five per cent appear too small nBe thankful I don't take it all n'Cause I'm the taxman, yeah I'm the taxman n nIf you drive a car, I'll tax the street, nIf you try to sit, I'll tax your seat. nIf you get too cold I'll tax the heat, nIf you take a walk, I'll tax your feet. n nDon't ask me what I want it for nIf you don't want to pay some more n'Cause I'm the taxman, yeah, I'm the taxman n n
the stupidity of "mankind" knows no bounds !!! from the day we were kicked out of the "garden" for willfully disobeying our "CREATOR" mankind has been fumbling in the dark to figure out how to govern itself !!! and this is the best we can do !!!! , fools leading fools down the slow slide and over the "proverbial" cliff !!!
It is worth noting that if Roberts had agreed to strike down ACA, the end result would be the Senate minority blocking _any_ new Supreme Court nominee and a further deepening of the ideological chasm. In this case, the lesson of 2008-2012 would have been that the White House and huge bicameral majorities are almost worthless. Elections do not matter: we would have seen that a determined minority of just 41 senators and/or a narrow majority in the Supreme Court can arbitrarily block just about any law passed by the majority… n n n
One of these days, probably not in my lifetime, the truth about this administration will come out, and one of the things that will come out is that Roberts was threatened.
and what would be so wrong with enough integrity to tell the threateners to go to hell, reveal the threat, and vote against the threateners? if roberts caved to a threat, he is more contemptible than obama, holder, and hillary combined, and that just isnt possible. no, he wasnt threatened. he is just a douchebag.
If this law is as unpopular as polls indicate haven't the Romney campaign's strategy and supporting ads become twice as easy and twice as effective? To wit "If you like ObamaCare vote Democrat. If you like unemployment vote Democrat — for every office."