Sorry Mr. Franklin, We Couldn’t

Wednesday, June 26, AD 2013

I was going to provide an analysis of both of the Supreme Court decisions today related to gay marriage, but instead I will focus on Hollingsworth v. Perry, which was concerned with California’s Prop 8. But first a couple of thoughts about US v. Windsor, the DOMA case. The immediate short-term impact of the case is somewhat limited in scope. Federal benefits will be conferred upon same-sex couples who live in states that recognize their partnership as marriage. The long-term impact, however, is much starker, as will be explained in a moment.

Both Justices Alito and Scalia provide blistering dissents, and they should be read in full. They disagree on a technical though not insignificant point about the standing of the Bipartisan Legal Advisory Group, or BLAG (and for the record, I tend to side with Alito). First of all, Scalia properly notes that, despite the rhetoric in Kennedy’s opinion, this was not a federalism case, or at least the case was not decided on federalism grounds. In fact, contrary to exhortations of some so-called libertarians on twitter, this case has the ultimate effect of further eroding states’ rights regarding same-sex marriage. Had this case been decided on federalism (10th amendment) grounds, then the outcome would have been possibly justifiable. But the majority’s reliance on 5th and 14th amendment concerns – effectively relying on the absurd legal doctrine of substantive due process – runs completely counter to the federalism argument, and paves the way for future challenges to state laws that prohibit same-sex marriage.

Justice Scalia recognizes this farce for what it is, and reminds the public of the exchange between these two very same Justices ten years ago to the date in Lawrence v. Texas. Then Justice Kennedy assured us all that striking down anti-sodomy laws would not eventually be used as a rationale for upending traditional marriage, and Scalia scoffed at him in the dissent. Well, guess who’s looking prophetic now. Even left-wing pundit David Corn (gleefully, this case) acknowledges Scalia’s prescience. Kennedy, backed up by the obtuse Chief Justice, assures us that nothing in this decision interferes with state decision-making on marriage. Once again Scalia scoffs, and, sadly, at some point in the future he will no doubt be proven right.

As for the Prop 8 case: my what a tangled web. I have been defending Chief Justice Roberts’s decision (joined, I may remind you, by Antonin Scalia along with three of the Court’s leftists) on the grounds that had the case been decided on the merits, it is quite possible that the same 5-4 majority in Windsor would have held Prop 8 to be unconstitutional, and this would have been the Roe v. Wade of gay marriage. Now, I’m not so sure.

Admittedly, I am somewhat conflicted on the ruling on standing. The majority concludes that the petitioners did not have standing because they were not official delegates of the state, and they did not experience any harm due to the appellate court’s ruling decreeing Prop 8 to be unconstitutional. From a  certain point of view, this is a perfectly acceptable legal holding. Scalia made a very good case in his Windsor dissent for a blanket denial of standing to all non-state petitioners in such cases. Scalia is acting fairly consistently, thus that explains why he voted with the majority here.

That said, the Chief Justice’s opinion is very worrisome, and not just from the standpoint of traditional marriage. As Justice Kennedy (!) explained in his dissent (joined in totality by Thomas, Alito, and Sotomayor), the petitioners here do, in effect, represent the state. In fact the state constitution all but says that when it comes to ballot initiatives, ordinary citizens are agents of the state. I would go a step further and suggest that Roberts offers up a very constrained view of who the state is. According to his logic, the “state” is nothing more than the Chief Executive and the bureaucracy. From a technical legal standpoint this is fine, but the very point of a ballot initiative is to bypass state officials whom the citizenry at large have decided are not acting in their best interests. I have written before about my concerns (to put it mildly) regarding ballot initiatives, but it is illogical to deny that the ballot initiative process changes the normal dynamics of who has legal standing.

The Chief suggests on page 8 of his opinion that once the proposition was approved and enacted, that petitioners no longer had a role in enactment. But if the executive branch of the government refuses to defend the amendment or statute, that leaves the citizens with no legal recourse.

The petitioners relied on the case of Karcher v. May to argue that they indeed had standing, but Chief Roberts denied that the the ruling there was applicable.

Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as  Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U. S. 131, 137 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court.

But in a case revolving around a ballot initiative, haven’t the voters themselves become, in essence, the equivalent of legislators?

Roberts’s reticence to grant standing in this case is understandable, and I can see why Scalia would join the majority. In his Windsor defense, Scalia admirably rails against the idea of an omnipotent judiciary that decrees on all constitutional issues just because it wants to. An overly broad interpretation of who has standing empowers the judiciary. But I think this is a rare case in which judicial deference actually damages the workings of the republican process. For good or ill, Californians have favored a much more directly democratic system, and the Court’s majority fails to factor that into its decision-making. By denying standing to the petitioners, the Court has said that citizens have no real redress should state executives defy their expressed wishes.

Which leads me back to my uncertainty over the rationale over the votes cast in these two cases. I’m in the odd position where I disagree with the person who I think has the cleaner motive, but agree with the person whose motives are perhaps suspect. I have no doubt that if this case had been decided on the merits, Chief Justice Roberts would have voted to uphold Prop 8, while I’m not so certain about Kennedy.  Scalia acted consistently with his overall principles, as did Alito (who would have granted standing to BLAG). Thomas offered no opinion in either case, but I suspect his reasoning would be similar to that of Alito, and so he acted consistently on the standing question as did, quite frankly, Sonia Sotomayor. As for the Court’s three other left-wingers – well, they did what they always did and just voted for the right (in their minds) outcome, reasoning be damned.

No matter the rationale for Roberts’s decision, it has ill portents. If Roberts acted strategically, then he abdicated his responsibility to be an impartial arbiter of the law. If he acted earnestly, well, he was simply wrong. More importantly, we’re stuck in a situation where the actual wishes of a democratic majority are trivial concerns compared to the desires of a handful of unelected judges. No matter how they voted today, this is simply untenable, and there is no end to this judicial tyranny in sight.


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5 Responses to Sorry Mr. Franklin, We Couldn’t

  • I think the style of rhetoric in Kennedy’s DOMA decision makes it pretty clear what his opinion is. Unless he puts states’ rights on the absolute highest pedestal, but it seems very weird to declare the issue illegitimate and prejudiced and limit that view to the federal govt.

  • “[T]he Court has said that citizens have no real redress should state executives defy their expressed wishes.” Except to vote them out of office; they can always do that, if they feel strongly enough.

  • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Herewith is the First Amendment. DOMA and Proposition 8 are peaceable assembly. Same sex so-called marriage is not equl Justice because the fraud involved in male brides is mob mentality. Proposition 8 judged by Vaughn Walker, a closet practicing homosexual with a vested interest, without the decency to recuse himself is a fraud. Government perpetuated fraud is tyranny.

    God is Justice. Atheism has no standing in a court of law.

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The Shelby Decision and Uncle Toms

Tuesday, June 25, AD 2013

This is, in a sense, a two-part post. The first part examines the decision handed down by the Court in Shelby v. Holder, and the second looks at the hysterical over-reaction.

The decision itself is fairly restrained. In a 5-4 decision, with Chief Justice Roberts delivering the opinion of the Court, the Court ruled as unconstitutional Section 4 of the Voting Rights Act of 1965. Actually, it really just ruled that Congress’s application of a 48-year old formula for determining which states and counties had to seek clearance from the federal government for any changes in its voting laws was lo longer justified. States subject to pre-clearance were those states which had poll tests and other restrictive measures in place at the time of the law’s enactment, and which also had enormous gaps in white versus black voter participation. This formula has remained unchanged for nearly half a century.

As the Chief explained in the ruling, the Court permitted a very wide abrogation of state authority in its decision upholding the Voting Rights Act (Katzenbach v. Morgan). The Court permitted what it termed “an uncommon exercise of Congressional power” due to “exceptional conditions.” As the Chief further explained, those exceptional conditions no longer applied, and indeed in those states and counties subject to pre-clearance there has been increased racial parity in terms of registration and participation. In fact, if one were to construct a list of states that should be subject to pre-clearance based on disparities in voter participation, there would be more justification in including Massachusetts instead of, say, South Carolina.

Justice Ginsburg in her dissent quips, “In the Court’s view, the very success of  Section 5 of the Voting Rights Act demands its dormancy.” By the standards established by the dissenters, the formula established in Section 4 could never be deemed unconstitutional. Further, as Chief Justice Roberts says in his opinion:

The dissent treats the Act as if it were just like any other piece of legislation, but this Court has made clear from the beginning that the Voting Rights Act is far from ordinary. At the risk of repetition, Katzenbach indicated that the Act was “uncommon” and “not otherwise appropriate,” but was justified by “exceptional” and “unique” conditions. 383 U. S., at 334, 335. Multiple decisions since have reaffirmed the Act’s “extraordinary” nature. See, e.g., Northwest Austin, supra, at 211. Yet the dissent goes so far as to suggest instead that the preclearance requirement and disparate treatment of the States should be upheld into the future “unless there [is] no or almost no evidence of unconstitutional action by States.”

Ultimately, the decision is of somewhat limited scope:

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.

Of course this hasn’t stopped the left from completely over-reacting. A post on the Corner compiled the most over-the-top reactions. Melissa Harris-Perry’s tweet of “Damn, that citizenship thing was so great for awhile,” certainly was cute, but no one is touching Minnesota state rep. Ryan Winkler, who tweeted, “SCOTUS VRA majority is four accomplices to race discrimination and one Uncle Thomas. Marriage decision may blur Court’s backsliding.” Winkler soon deleted that tweet, and followed up with this whopper:

Uh huh.

It’s difficult to determine the most disgusting part of this exchange. Either Winkler is historically illiterate or a liar, though of course nothing necessarily precludes both being true. What’s worse, this white legislator from one of the whitest states in the Union seems to think he knows better than a black man raised in the South about how to deal with racial prejudice. Moreover, whitey has declared himself the judge of authentic blackness. Charming.

Finally, and I realize this is something of a nitpick, but the very term “Uncle Tom” is offensive not just because it carries with it the implicit notion that all African-Americans must think and act a certain way, but because the term itself is based on a character in a historical novel who was the opposite of what the term is meant to imply. I have a feeling that no one who has ever used the phrase has actually read the novel Uncle Tom’s Cabin, because if they had they would have a hard time justifying referring to the character as a race traitor. Then again, we live in a world where Al Sharpton is given legitimacy as a political analyst on a cable news network, so perhaps I underestimate the stupidity of large swathes of the American public.

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6 Responses to The Shelby Decision and Uncle Toms

  • “What? You mean there are racial overtones to an affluent white man representing an affluent white district in a lily-white state (where the term “people of color” refers to Danes) calling out an African-American man as an “Uncle Tom” for not behaving the way an affluent white man believes an African-American is “supposed” to act?”
    ~ Ryan Winkler – D(ouchebag) F(or) L(eftism), MN

  • dunno it sorta seems like a reverse-engineering of the liberal approach to the Constitution, i.e. having a seemingly broad definition of what counts as unconstitutional as far as legislation, as opposed to just blocking/reversing broad liberal judicial decisions. Though it is funny to see liberals appropriating conservative rhetoric about judicial activism for this and when they thought Obamacare was going down.

    as far as “Uncle Tom,” the term is what it is at this point whatever it originally meant. Since it has a defined meaning similar to being a shill I don’t think it’s inherently offensive (not on the level of other slurs anyway) even though people toss it around lazily.

  • A white man calling a black man an “Uncle Tom” is inherently racist. It means “Hey, ‘black’ man, you’re not behaving the way I – a white man – thinks a black man should behave.”

  • The idea that Congress could pass legislation taking away a measure of self government from only certain states always was an affront to the equal protection afforded by the fourteenth amendment, and the Court, as it did today, overlooked the obvious in not striking down the entire statute, however well-intentioned and needed the statute was in many parts of the South half a century ago. Now it is merely a relic of a bygone era. Although of deep emotional significance to liberals, perhaps as a memory of the brief period they did not embrace racial discrimination, the Court gutting the statute has as much practical significance as the Court striking down letters of marque and reprisal.

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  • Law rarely goes away merely because the conditions predicate are no longer true.

    Discrimination laws and the agencies that oversee them continue to expand while the incidents of actual discrimination become fewer and fewer. This ruling is unsatisfactory but the Court could have done little else – the offenses necessitating federal oversight being so grave and the underlying symbolism that the Voting Rights Act engenders in Americans. Actually, it is rather brave and surprising that the Justices took this step.

    What isn’t surprising is Justice Thomas’ position.

    I always ask anyone who is criticizing Justice Thomas whether they have read his autobiography. Either I am told “no, did he write one” or “yes, what a whiner.”

    I have read the autobiography several times. His story is comelling and the blueprint for his choices on the Bench is startlingly clear. The autobiography deals effectively with the Uncle Tom usage debated above since it was written by a very smart man, wholly aware that that mean-spirited, demeaning term was a cross he would have to bear the weight of long after he dies.

A Ravenclaw, not a Gryffindor (Updated)

Monday, July 2, AD 2012

For those conservatives tenaciously clinging to the idea that Chief Justice John Roberts is playing some masterful game of chess that will end only with the liberals on the Court, in Congress, and in the White House brought to their knees in humiliating defeat, well, I’m not even sure the Chief is up for a rousing game of checkers. According to Jan Crawford’s piece, Roberts’ change of heart was motivated in large part to concerns over media pressure. So, the Chief Justice of the United States, according to this report, was cowed into upholding Obamacare because he was afraid of how the Court – and especially he – would look.

It has been rightly pointed out that Crawford relied on two anonymous sources, and therefore this story should be taken with some fine grains of salt. It’s certainly a plausible story, but an unconfirmable one.

Fine. It is possible that the Chief Justice wasn’t cowed by media or executive pressure. But even if the Chief Justice was not particularly pressured to decide in favor of Obamacare, it’s not beyond reason to suggest that he was still concerned about the institutional prestige of the Court, as well as a respect for the other two branches of government. Thus he concocted a rather far-fetched legal argument in order to justify declaring as constitutional a statute he knew at heart was not constitutional. So the more charitable interpretation of Roberts’ behavior is not that he’s a coward, but rather an activist who decided to rewrite a statute from the bench in order to avoid embroiling the Court in a partisan political battle.

There is a third option: John Roberts legitimately believed in the argument he made about the statute’s constitutionality.

Which is the option in which the Chief Justice looks like a chess playing genius again?

The title of the post, by the way, comes from my wife’s suggestion that President Bush nominated a Ravenclaw when he should have nominated a Gryffindor. It’s certainly more logical than anything I heard the Chief Justice say last week.

Update: It occurs to me that there is a fourth avenue of “defense,” and that is Roberts made a brilliant political calculation by forcing Obama to defend the health care law as a tax. Put aside the question of whether or not that would be an astute political maneuver. If that were indeed Roberts’ intention, than that hardly speaks well as to his character as Chief Justice. If he decided to uphold the law only to enable its use as a partisan club against the president, then the Chief Justice would have engaged in behavior that would justify his removal from the bench. So his defenders might want to think twice about that line of attack, at least insofar as they posit that he willfully engaged in such politicking.

By the way, if you’re still unsure of what to think of John Roberts’ thought process, look who was helping him along and now has his back.

Kmiec, a rare conservative supporter of Obama in 2008 who served as his ambassador to Malta, said he thinks Roberts sought out Justice Anthony Kennedy’s vote but didn’t spend much time trying to sway Justices Antonin Scalia, Clarence Thomas and Alito. Roberts, he said, probably didn’t worry about being punished by the conservatives.

“Roberts is a bigger man than that,” Kmiec said. “He might smile and recognize that was what they were doing, but he’d also just appreciate that was their way of making a statement. But he’d not chase the tail of the dog to try to turn it around.”

Kmiec, who served a resource to Roberts as he lined up his current two-week teaching trip to Malta, said he thinks Roberts would prefer that the story of the court’s internal deliberations get out “rather than keeping it so secret that it’d have caused some hard feelings among the chambers.”

“I think he knows in his heart that he’s reached a good decision for the well-being of the court and I don’t think he’s earned any long-term enmity of the conservatives,” Kmiec said. “If anything, this will give him more bargaining ability for years to come on both sides.”

Well if he’s got Doug Kmiec on his side, what more can a man ask for than that?

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30 Responses to A Ravenclaw, not a Gryffindor (Updated)

  • I think Bush’s main flaw is that he’s a Hufflepuff, like me…and agree that he went for a Ravenclaw.

  • (Full disclosure: married a Ravenclaw-through-will; a lot of the classification is based on choice.)

  • There’s no sense in this checker game. What’s the payoff for Roberts by limiting the Commerce Clause when he knows that no future liberal Court will pay attention to the Constitution let alone judicial precedent? Roberts is not a befuddled justice without intellectual integrity. Is something more sinister afoot?

  • I’ve read an incredible amount of hoo-ha and wishful thinking by conservatives in the past few days – Roberts is a super-genius playing chess while every else is playing checkers(some libs follow this line of thought as well); his epilepsy meds damaged his judgement; he is secretly gay and the Obama administration is blackmailing him; and, my personal fav, the Chicago mob threatened him and his family. (As if the Chief Justice of the United States is on the same level as some obscure Cook County judge. As if a Supreme Court Justice would be helpless in the face of physicial threats. As if nobody would be suspicious if a SC Justice or a member of his family disappeared and were found swimming with the fishes in the Potomac.)

    Many people do not want to face the apparent fact that Roberts did what he did because he succumbed to the desire to be loved by the Right People (i.e., his neighbors in Chevy Chase, the NY Times editorial board, Georgetown hostesses). The opinions of such declasse individuals as the Tea Partiers and us little fly-over types – bah, who cares what such trash thinks? As if it is utterly unheard of, an incredibly rare thing to have a GOP appointment to the SC sell us out.

    I think people don’t want to think they were wrong about the man. I supported his appointment and was happy when he was confirmed because he would be a firm defender of our rights. I am willing to admit I was wrong.

    Klavan on the Culture nails it:

    Do many Americans even understand what “independence” means these days? We are in a mad rush to copy ourselves after the Europeans – just as Europe fails.

  • I don’t think we are headed toward totalitarianism. That costs money – we don’t have it! No, I think we are headed toward chaos- and, since I am a middle-aged single woman, that frightens me almost as deeply as totalitarianism!

    If we can be taxed for breathing, I predict a huge growth in black market activities and under-the-table payments. I worked “under the table” as a barmaid in the U.K. in 1980 because when I got over there I found my Jimmy Carter dollars were worth next to nothng. A London pub owner offered me a part-time job and since I was low on cash, I accpeted.I never felt I was taking a job away from anybody, since most of the young Brit guys I met were on the dole. You think that’s not going to happen here? Obama will send the IRS out in force and many Americans will do anything they can to avoid the IRS.

  • Oh, and need I point out that the UK’s economy at that point was still dreadful? Thatcher’s reforms had not yet kicked in. I saw anti-Thatcher signs every where I looked.

    Paul, some commenter at Ace made the perfect analogy (and one I am sure you will appreciate since you are a fellow baseball fan). He said Roberts had described his job as being an ump, calling balls and strikes. In this case, a perfect strike went right over the plate and Roberts said, if the plate was over there, it would have been a ball. Therefore, I’m calling it a ball.

  • I think that Kmiec is confirming that Roberts was concerned about how he would look in the media.

  • “Kmiec, who served a resource to Roberts as he lined up his current two-week teaching trip to Malta, said he thinks Roberts would prefer that the story of the court’s internal deliberations get out “rather than keeping it so secret that it’d have caused some hard feelings among the chambers.”

    “I think he knows in his heart that he’s reached a good decision for the well-being of the court and I don’t think he’s earned any long-term enmity of the conservatives,” Kmiec said. “If anything, this will give him more bargaining ability for years to come on both sides.””

    I was wondering about a Kmiec-Roberts connection when I heard that Kmiec was going to Malta of all places to teach law during the summer. Roberts is now reaping Kmiec’s reward for his support of Obama in 2008: scorn. I wonder if Roberts understands yet the fire that his decision has lit among conservatives in this country? Perhaps he will not fully comprehend it until election day when he may begin to understand that he sought to appease powers that be that will no longer be powers in the future.

  • Hmmm, look at this truly fatuous piece that Kmiec had run in the Jesuit rag America just prior to the Supreme Court ruling:

    It is aimed at Justice Kennedy. Was this part of a last ditch effort to convince Kennedy to join Roberts in flipping? I doubt it, but it is interesting, especially the outright prediction that the Court would uphold ObamaCare.

  • That Kmiec asserts such knowledge about the inner-workings of the Court is troubling.

    There is great in silence. Opening the process to scrutiny opens the institution to exterior influences. The Court’s secrecy has been a shield. Secrecy allows the justices to fight honestly – a rare thing for lawyers. Without that candor, they cannot do their work.

    We see the same problem cropping up at the Vatican. There too, we have “leaks” that expose the messy world of making policy. We are not served by cardinals hiding their true views out of fear that they will be exposed.

    If, as Kmiec suggests, CJ Roberts is intentionally leaking the details of their work under some misguided attempt at transparency, that is a serious problem.

  • What everyone (at least among conservatives) seems to be assuming is that Roberts’ decision was based on ulterior motives. Could it even be remotely possible that his ruling was in accord with what he thought was . . . right? The commerce clause was never considered to be a slam dunk argument, and the possibility that the individual mandate could be viewed as a tax, was always acknowledged. People were only surprised at the outcome because they allowed themselves to overestimate the strength of the one argument, and to underestimate the strength of the other, not because the outcome was intrinsically obvious.

    As a conservative, I don’t find the individual mandate to be remotely disturbing. I am tired of paying for other people’s healthcare – they need to behave responsibly, and banking on charitable write-offs from hospitals (trust me – you are paying for this) is not responsible behavior. At the same time, coverage for individual policies is out of reach for most – one of the key levers we have is to broaden the risk pool, drawing down premium prices. From an economic perspective, I’m also in favor of reducing structural impediments to workforce mobility. To the extent that people have a disincentive to take risks and start new businesses or pursue new job opportunities because they are “afraid to lose their benefits,” we are inhibiting growth and innovation. Untaxed healthcare benefits are part of the collusion between government and big business, and are used as a means of increasing individual dependence on big corporate benefits. Time to crack this baby open and kill off this vestige of WWII-era social engineering.

    What Obamacare doesn’t address is one of the root causes of healthcare inflation – individual responsibility. Premiums are as high as they are because people spend as much as other people will give them. When there is little to no individual sensitivity to cost, consumption will continue to rise, and prices will go unchecked. There are no normal consumer dynamics at work, here. We are wasting the highest % of GDP of any nation in the world on something that is one of the most economically unproductive sectors, rather than anything that will produce future returns.

    That is one of my biggest concerns about Obamacare – it promises what it can’t deliver, is a huge waste of taxpayer money, and entails financial commitments (e.g. expansion of Medicaid) that will never be covered by cost offsets. Small example – look at Archives of Internal Medicine, March ’12 issue. The Value Based Purchasing incentive payments/penalties to hospitals is based partly on patient satisfaction. But as it turns out, patient satisfaction is INVERSELY correlated to mortality and inpatient service utilization and cost. Patients are happy when they feel that more “stuff” is being done. WHOOPS! I expect we will see that many of the clinical process measures defined in each stage of the Obamacare rollout will have similar results – because they were never tied to science, just to wishful thinking. “Oh, you’re concerned about the cost to cover an additional 40mm people? Don’t worry – we’ve got that covered.” I don’t think so. The biggest concern, of course, is that it is being used as a no-limit hunting license by HHS to impose whatever rules they deem “in the interest of public health,” (e.g. contraceptive coverage) without any Congressional oversight. This is all part of the hubris of the Obama administration – to take matters OUT of the public square and to let matters be decided by “the experts.”

    As for the individual mandate – it was originally proposed by conservatives who were looking for a way to leverage the private sector to address the real damaging consequences to productivity that result from a large uncovered population. It’s a perfectly reasonable proposal, and I see no need to try to generate conspiracy theories to explain how Roberts could conceivably have interpreted it as within the powers of Congress granted by the Constitution.

  • “Could it even be remotely possible that his ruling was in accord with what he thought was . . . right?”

    I truly hope not. His job wasn’t to determine whether ObamaCare wasn’t good public policy but whether it was constitutional. The very idea that ObamaCare could exist within the framework of the limited Federal government as set up by the Framers I find risible. The individual mandate was only one of many obviously unconstitutional features of this 2700 page monstrosity. Now that the Supreme Court has failed to do its job, it is time for the voters to do theirs on election day.

  • Could it even be remotely possible that his ruling was in accord with what he thought was . . . right?

    If you mean constitutionally right, I did raise that possibility. As I said, if so, it doesn’t really speak well for his judgment either.

    As for the amount of leakage on the internal Court happenings, it is very unusual. If it’s coming from one of the four anti-Obamacare votes, then it is in indication of just how furious they are with the Chief Justice.

  • “As a conservative, I don’t find the individual mandate to be remotely disturbing.”

    Let’s examine.

    A. “Premiums are as high as they are because people spend as much as other people will give them.” True, and this will not change under the proposed system. In fact, it will expand.

    B. “What Obamacare doesn’t address is one of the root causes of healthcare inflation – individual responsibility.” I’d have added “lack of” after the hyphen but essentially also true.

    Therefore, as a conservative, you find undisturbing a law or ruling that forces people into the current system, which directly contradicts the conservative principle of personal responsibility.

    Quo errat demonstrator.

  • I find it undisturbing on the grounds that it doesn’t patently exceed the Constitutional boundaries of Congressional authority. Possibly, but not patently. Reasonable arguments could be advanced from both perspectives. We can’t argue that something violates clear and evident first principles simply on the basis that we feel passionately about them. This just leads to circular reasoning, in which the only possible conclusion is that the adversary is denying the obvious because of some sort of willfulness or moral turpitude. That’s a severe charge, and at other times and places would have called for pistols at high noon, although I would be surprised if Justice Roberts chose to resort to such measures. It would be fun to watch, but he might be handicapped by his judicial robes. It seems like everyone is rushing to draw some sort of conclusion like that in this case – some sort of conspiratorial calculus on the part of Justice Roberts. Or, the other possibility is just that it’s not an immediately evident conclusion, in which case it would be reasonable to defer to Congress, even if Roberts disagrees with the approach as a matter of policy. And so, my hair refuses to stand on end, and I think this is probably a matter for journalists to attempt to froth up public sentiment so they can write more articles about how outraged the public is. As a case of perversion of justice, it fails to outrage.

    In terms of outrage on the part of the other conservative justices, we are basing this on what, exactly? A report from CBS quoting “anonymous sources?” I’m surprised that conservatives are being taken in by this kind of journalistic titillation, especially from an organization like CBS. Please.

  • Perhaps the term “Conservative” is the bump in the road. I know many liberals who believe just as adamantly that the mandate is well within the bounds of Congressional mandate.

    The ability to tax inactivity seems antithetical to a small-government, Constitutionally constructionist point of view, but I neglected to take into consideration the Social aspect.

    Seeing how most Conservatives believe that it’s perfectly fine for government to channel and shepherd behavior towards an acceptable (to them) moral standard, perhaps this is a welcome development if one resides on that segment of the spectrum.

    Mea Culpa.

  • *Congressional authority.

  • “Perhaps the term “Conservative” is the bump in the road. I know many liberals who believe just as adamantly that the mandate is well within the bounds of Congressional mandate.”
    If this is so, then the mandate needs to be put on the ballot to be fairly given informed consent, except that nobody knows what is in it and Obama is not about to tell. The mandate can change itself and morph into anything the unelected wants it to moroph into. A pig in a poke is a good simile, or a bridge in Brooklyn, or a pie in the sky, or the bottomless pit. Can anyone imagine falling into the bottomless pit FOREVER and forever. Why it is like homosexual behavior, doing that sin forever and forever. It has got to get boring, boring, boring. Somebody’s got to say: “Hey. that is boring.

  • “I’m surprised that conservatives are being taken in by this kind of journalistic titillation, especially from an organization like CBS. Please.”

    Rubbish. The CBS reporter Jan Crawford authored an evenhanded history of the modern Court, Supreme Conflict, and is trusted by judicial conservatives as a result. I think it highly likely that her sources are two of the Conservative justices, or two clerks of the conservative justices. Trying to raise the CBS bogeyman as a shield for Roberts is a poor tactic in this case. The more I study his decision the worse it looks, and the more likely in my mind that the considerations guiding him had little to do with the law, especially since reports are suracing that he authored most of the dissent as a majority opinion prior to his flip:

    After this debacle few people, left or right, are going to trust Roberts, or any decisions that he authors, to be ever be anything other than an ongoing exercise in Roberts’ expediency.

  • The fact of the matter is that Obamacare cannot be put on the ballot. It does not fulfill the requirements for the definition of a law. It does not inform the voter to gain consent. Obamacare relegates to unelected officials prerogatives that are the domain of the individual person, unauthorized use of prerogatives taken from the citizen as to their care and other unauthorized prerogatives not yet written out in the insurance contract. Therefore, Obamacare cannot be put on the ballot as a law, as Obamacare excludes informed consent and does not express the will of the people. Obamacare had to be railroaded through Congress by empty promises that can be changed after it is funded, and bullied through the Supreme Court as law. A penalty will acknowledge Obamacare as law. A tax will acknowledge Obamacare as law. Obamacare does not meet the criterion of a law. Abuse of the individual’s unalienable right to informed consent, denial of the citizen’s sovereign conscience, Obamacare cannot pass muster to be tried under the Commerce Clause, nor to be enacted as law, nor to be the basis for a tax or a penalty under the law that it is not.

  • Donald: you have a habit of saying “rubbish” in your prolific responses, and I’m not sure to what end. A statement of your conviction in your own opinion is meaningless to the other party, and obviously meaningless as a means to reinforce your own self-opinion. But perhaps that’s the dialectic standard of a blogger. I’m not sure if the goal is ever to persuade the other, or just to attract the attention of like-minded individuals.

    Everyone is aware that Jan wrote the article, as well as her past work, but a credulity is being granted to this rather preliminary piece of gossip that would not normally have been the reaction to the work, considered on its own merits. I’m sure there was friction and frustration within the court, as I am sure most contentious rulings are passionately debated. But that’s as far as it probably goes – a big “so what?” In other words, it’s making a mountain out of a molehill from the passion of the moment, and probably the indiscrete grumblings of a couple of clerks. No conspiratorial calculus, no permanent rift in trust or collegiality between the members of the Court, and probably not even an effect for the remainder of this session. By next session, this won’t even be a story. What strikes me as far more evident, beyond the rather hyperbolic overreactions, is that people have embraced the image of Machiavellian contortions on the part of Roberts with the same fervor and certitude that they embraced the applicability of the commerce clause to the individual mandate for precisely the same reason – because it suited their purposes and preconceptions, not as either stand on their own merits. They have some merit, some potential, but reasonable and less dramatic alternatives hold just as much merit. The fact that they “explain appearances,” to steal a phrase from Ptolemy, in a way that accords with our own political dispositions adds nothing to their merit or strength, independently considered. In other words, they do not become more true because we want them to be so.

    I would rather that Conservatives expend their energy not on conspiratorial outrage from such meager scraps, but on developing a truly compelling vision and strategy that returns us to economic prosperity, creates opportunities for all in a new global economy, protects individual liberty and conscience, and protects the family and religion, the basis of character and virtue, from the intrusion of the state. This other stuff is just bringing a pea-shooter to the fight.

  • “Donald: you have a habit of saying “rubbish” in your prolific responses, and I’m not sure to what end.”

    To accurately describe for my readers what is being conveyed by the other party.

    “Everyone is aware that Jan wrote the article”

    Rubbish. I doubt if you did until I pointed it out, and if you did you were being mendacious in attempting to raise the CBS bogeyman to discredit the story in the eyes of conservatives by a Pavlovian response.

    “In other words, it’s making a mountain out of a molehill from the passion of the moment, and probably the indiscrete grumblings of a couple of clerks.”

    No, an unsigned dissent is rare, and the passion and obvious anger with which Kennedy read the dissent is highly unusual. The firestorm being unleashed against Roberts is unprecedented in the contemporary history of the Court.

    “By next session, this won’t even be a story”

    That is delusional. This decision will haunt Roberts to his grave and beyond. Like Taney’s Dred Scott decision, this is the decision by which Roberts will go down in history.

    “What strikes me as far more evident, beyond the rather hyperbolic overreactions, is that people have embraced the image of Machiavellian contortions on the part of Roberts with the same fervor and certitude that they embraced the applicability of the commerce clause to the individual mandate for precisely the same reason – because it suited their purposes and preconceptions, not as either stand on their own merits.”

    Obviously wrong on both counts.

    “I would rather that Conservatives expend their energy not on conspiratorial outrage from such meager scraps, but on developing a truly compelling vision and strategy that returns us to economic prosperity, creates opportunities for all in a new global economy, protects individual liberty and conscience, and protects the family and religion, the basis of character and virtue, from the intrusion of the state.”

    Beating Obama in November is a start, and no longer appointing spineless cravens like Roberts to the Federal bench would be another. Conservatives this year need to concentrate on winning in November and not waste their time in defending a fraud like Roberts from the justified outrage that his self-serving betrayal of the Constitution has roused.

  • Again, “rubbish.” You are become predictable, Donald.

    As a matter of fact, when CBS first came out with the story, I did notice who the author was, and I was aware of the seriousness of her previous work. I also felt that, even with those factors, this was pandering to our baser instincts, and was more about initial spastic reactions to a surprising verdict than anything else. You seem to think that you are the only one who does their homework, and are pretty quick to 1)assume your conclusions are the only reasonable ones, and 2)the other party in the debate is suffering from the effects of some sort of psychotropic drug. Rather than argue about hypotheticals, let’s just take a look at this time next session and see if your apocalyptic predictions come true. The answer will be evident soon enough. In the meantime, I would propose that beating Obama in November will probably require a different tack – something a little more . . . weighty.

  • You are become predictable, Donald.

    Want predictable, how about folks changing the subject to the person they’re disagreeing with….

  • “Again, “rubbish.” You are become predictable, Donald.”

    And I will be utterly predictable in regard to your comments as long as you seek to push rubbish in the com boxes.

    “I did notice who the author was, and I was aware of the seriousness of her previous work. I also felt that, even with those factors, this was pandering to our baser instincts, and was more about initial spastic reactions to a surprising verdict than anything else.”

    Than you were being mendacious in attempting to raise the CBS bogeyman when you knew there were good reasons why conservatives should grant her story credibility.

    “You seem to think that you are the only one who does their homework”

    I judge by the content of the comment.

    “is suffering from the effects of some sort of psychotropic drug.”

    No, slip shod thinking is more frequently the culprit.

    “let’s just take a look at this time next session and see if your apocalyptic predictions come true.”
    Nothing apocalyptic at all in my prediction. I merely contend that Roberts has shredded his credibility and that no one is ever going to forget that.

    “I would propose that beating Obama in November will probably require a different tack ”

    Actually it has been my position prior to the decision being released, that the final nail in the coffin of the Obama re-election bid would be if the Court upheld ObamaCare. A fatal victory for Obama.

  • Well, the great thing about your position, Donald, is we can test it over the next year. Either public outrage builds and builds, and Obama and the Democrats are swept out of office with that (Obamacare) as a prevailing theme in the polls, or it all dies down and people move on to some other issue. Either the tension in the Supreme Court continues to build, or they move on. Either way, I hope the GOP wins in November, but I think any sustained momentum will require a different focus. Temper tantrums and intrigue are good for a month, and then people come back to the basic question . . . “how does this affect me?” The people who are affected by the individual mandate are primarily 1)young voters with low current (expected) healthcare expenditures, and 2)low-income individuals who cannot afford insurance through their employers (the unemployed are largely on Medicaid). Care to guess which party those two demographic groups tend to support? I can’t seem them rushing into our arms, saying “thank you so much for your advocacy on my behalf! How could I have been so blind?”

    So, outrage at a principle, in my estimation, will not trump people voting their (perceived) interests. The GOP base, and independents who can swing to support the GOP, are not primarily the ones who will be forced to buy insurance. And those who are forced to buy insurance as a result of the individual mandate are probably not going to move in any significant way on the argument that their Constitutional rights have been violated. They have too much of a vested interest in tax-and-spend policies for that to be a meaningful argument. It’s clear you want this to be a major issue, and are more than happy to endorse people who support that position. Whether it is a major issue will probably not be decided by our wanting it to be so, but we’ll find out soon enough. Let’s revisit this in November. Whether this decision “haunts Roberts to his grave and beyond,” well, I guess that will probably take a little longer than November to test.

    And Foxfier – I doubt Donald will whither under my brutal ad hominem attack. He seems rather resilient. See, he said “rubbish” again, undaunted and undeterred.

  • “with that (Obamacare) as a prevailing theme in the polls,”

    The lousy economy is the primary factor. The importance of Obamacare is that it invigorates conservatives for the election, especially adherents of the Tea Party. It also ensures that Romney will fight this election on at least equal terms with Obama when it comes to donations.

    “how does this affect me?”
    As the HHS Mandate indicates, broad portions of the American people are impacted by ObamaCare. Reportedly the Feds have been busy writing 13000 plus pages of regs to implement this monstrosity. You underestimate the depth of feeling among opponents to ObamaCare.

    “The GOP base, and independents who can swing to support the GOP, are not primarily the ones who will be forced to buy insurance.”

    The mandates in regard to insurance coverage are rapidly increasing their insurance rates. More and more private employers are being forced to abandon the provision of insurance due to these increasing rates. It is the rare person in this country who is not being directly impacted by Obamacare.

    “Whether this decision “haunts Roberts to his grave and beyond,” well, I guess that will probably take a little longer than November to test.”

    Indeed. I cannnot imagine anything that Roberts does in the future where I will not mention his Obamacare decision on this blog, and there will be many, many like me in tens of thousands of blogs.

  • And Foxfier – I doubt Donald will whither under my brutal ad hominem attack. He seems rather resilient. See, he said “rubbish” again, undaunted and undeterred.

    And that has what to do with the predictability of the your response?

  • Chief Justice Roberts approves RomneyCare as a tax, but all we get is middle-age white boys whining-whining-whining-whining-whining….

    Ain’t they got no self respect ???

  • He interpreted ObamaCare as a tax. Foxfier is neither middle-aged nor a boy. Donna, Ginny and Mary are not boys. Paul, the author of the post, is white and young. I am beyond middle age, unless I am going to live to 110. I guess I am white if Cherokee ancestors do not eliminate me from that category. Of course I was not whining but analyzing the ruling.

The Majority Opinion that Became a Dissent

Thursday, June 28, AD 2012

If you had told me before the day started that John Roberts and Anthony Kennedy would have penned differing opinions on the Obamacare case, and that I’d be siding with the latter’s opinion, I would have said that you were nuts. Alas, it appears that John Roberts is the new Anthony Kennedy.

Ed Whelan has speculated that Chief Justice Roberts changed his vote at the last minute, and therefore the dissenting opinion was originally the majority opinion. He has a follow-up post that posits another theory supporting that notion, which also explains how that could be logistically possible. Having now fully digested the dissenting opinion, I am just about 99 percent certain that John Roberts did indeed change his vote, and that the dissenting opinion was the majority opinion until the Chief Justice changed his mind.

Frankly, the dissent just doesn’t read like a dissent at all. As Whelan points out, the dissenting opinion repeatedly alludes to Justice Ginsburg’s opinion as the dissent. In fact, the dissenters barely alludes to the Chief Justice’s opinion at all until the very end. The final couple of pages are a scathing attack on the majority’s opinion, heretofore unmentioned. It certainly seems like the dissenting Justices felt jilted by the Chief Justice, thus the unusually harsh rhetoric of the final few paragraphs of the dissent. Another sign that the dissenters were in the majority comes on the second page:

Continue reading...

36 Responses to The Majority Opinion that Became a Dissent

  • I wonder if Chief Justice Roberts believes that he has secured peace in our time with his decision.

  • This is a brilliant and thoughtful post and I love it. But I couldn’t help but not the double meaning at the spelling here-

    “left at the alter by the Chief Justice”

  • I meant to write NOTE the double meaning!

  • Ha! Good catch anzlyne. That was unintentional, thus I edited the post.

  • Chief Justice Roberts = Neville Chamberlain
    Barack Hussein Obama = Adolf Hitler

    Nothing could be clearer.

  • Oh, but Paul Z., “alter” is perhaps MORE correct.


  • If Roberts is such a spineless jellyfish, he should not serve on any court, anywhere.

    Honestly, I feel hatred toward the man. And yes, I recognize that that is a terrible sin, and I am praying for the hate to go away. But at the moment, it is difficult for me to feel any other emotion for the man who shoved a knife into the back of the USA today. And when I think that he is a young man and will be Chief Justice until he dies or retires, I feel utter despair for our future (and yes, I know despair is also a sin). It’s funny – I frequently feel anger toward and contempt for Obama, but I don’t hate him. I recognize that he is following his own principles, twisted though they may be. But Roberts – a man who has apparently caved because he couldn’t stand the heat? His legacy? His rightful place will be next to Justices Taney (Dred Scott) and Holmes(the government has a right to sterilize the mentally handicapped because “3 generations of imbeciles are enough.”

    But, hey, on the upside, I’m sure Roberts will get lots of invitations to chi-chi G-town parties now!

  • Pingback: Catholic Blogosphere Reaction to Supreme Court Health Care Ruling | Big Pulpit
  • On the other hand, by returning the issue to the political sphere, Roberts has put it back where it belongs. Sure, I wanted the mandate struck down so I could spike the ball and gloat…but the reality is that if the mandate had been found unconstitutional then the liberals just would have brought it back under different guises at a later date. Heck, even if struck down you have to figure Obama would continue to implement it by regulatory fiat (DREAM Act, anyone?). Upon reflection, I wish we hadn’t even brought it to the courts – the proper place for this battle is in the court of public opinion. Either we can convince a majority to repeal ObamaCare, or we can’t. If we can, then we’ve won the war – if we can’t, then striking down this particular law would do no long term good.

    Take this, my friends, as a blessing – we are not challenged to work with a will and, with our trust given to God, do what we know is the right thing.

  • Think, for a moment, just how dead gun control is – sure, some court decisions were helpful but, at the end of the day, it was an awakened American people determined to preserve their right to bear arms which made the issue politically toxic…and now the Courts follow the people on the matter. That is how not just Obama Care but all manifestations of socialism must be defeated…

  • I am reminded of the story about a bird that did not fly south for the winter. Stuck in a barnyard, nearly frozen to the ground, accepting fate that nothing was worse and it would die. A cow walked by and dropped a load of “out-put” on the hapless bird. But the dung was warm and there were undigested seeds. The bird was warmed, ate and then started to sing. That was when a barn cat came along and started to dig. Happy to be free the bird sang and stretched. And was promptly killed and consumed by the cat.

    Moral of the story, not everyone that craps on you is your enemy, not everyone that gets you out of s@#% is your friend, and if you are buried and happy, keep quiet about it.

    I do not believe that Chief Justice Roberts is our “enemy” nor do I think he is another Chamberlain. It was left to the voters to remedy the action of this Act of Congress. Otherwise from now until the end of the USA there will be the constant court battles to undo what was done by a prior administration.

    It can be done, through the ballot box and our elected Representatives, not from appointed judges that many of whom owe more allegiance to a political ideology than to justice.

  • Ah, yours is the calmer, wiser take on things, Mr. Noonan. I was so bitterly angry today and felt so betrayed….I pray you are right.

    I am a Burkean conservative, and as such, am frequently disgusted with Republicans professing to hate big government and yet voting for big government as soon as they get nice offices in DC. I hope for and fully expect Romney and a GOP Congress to strike down Obamacare. If they don’t, well, I will be done with the GOP. We will end our days as slaves to the Almighty State and there is nothing the little people like me can do about it.

    A few months ago, in confession, a priest reminded me to put not my trust in kings – or politicians, or hopped up lawyers (which is what Roberts is)….Yes, he was right.

  • BTW, it takes a full 10 minutes before I can download TAC and probably another 5 before I can access the comments section. I have showered and blown-dried my hair in the morning- and then I return to my computer and find TAC is still not downloaded. I find it the slowest site in the Christian world 🙂 It is the number one reason why I rarely comment here- does anybody else have similiar difficulties?

  • I did worry about Roberts as I’ve been reading how he doesn’t want his court to look too political but I didn’t think he would actually go this far. It was like he was reaching for something to uphold this law & he found it in taxes. I’ve lost total respect for this man. We need healthcare reform but not this one. I’m a moderate conservative but I was very angry & I’m totally disliking Roberts right now as he changed America as we see it. Obama is changing this country & I won’t even recognize it if he remains president. I’m just sad.

  • Mark, it isn’t up to the Court to decide issues based on the politics of the situation. Roberts’ attempt to play John Marshall and get the Court out of a political jam was unnecessary. What exactly would have been the fallout if the Court struck down Obamacare? President Obama and the Democrats would have complained. So what? A majority of the population would have supported the outcome, and even if a majority did not that is irrelevant. As the dissenters correctly pointed out, the Chief Justice’s attempt to the get the Court out of politics only entangled it further. In the end, the Court made law. How is that an example of the Court returning the issue back to the political sphere. With this decision the Court became part of the political sphere.

    All that being said, I agree with what others have said in terms of dialing back our emotions. We are not in Nazi Germany, and the tanks aren’t going to start rolling into our Churches. This is a terrible defeat for the rule of law, and I think also a worrying sign that we’re still two votes away from repealing Roe. But we need to take it down a notch.

  • Donna, I don’t have any problems, but you are not the only person to notice that. We’ll look into it.

  • Indeed. Additionally I view this as a Pyrrhric victory for Obama, as this decision will be a millstone around his neck during the remainder of the campaign. Too many conservatives become disheartened too easily when there is every reason to think that this decision is a Godsend politically.

  • Don, you’re ever the optimist, which I admire. Of course, I always see a half-full glass. The rosy reaction is like finding good news in a recession by reading a headline: “Mafia forced to lay off 6 judges”

  • Another thing that irks me about the rationalization of this decision, as seen in Charles Krautahammer’s column:

    Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is saying: Your job, not mine. I won’t make it easy for you.

    This is akin to George Bush avoiding the question of the constitutionality of McCain-Feingold and letting the Courts decide. All three branches of the government have the equal authority and obligation to decide upon the constitutionality of legislation before them. It is an abrogation of duty, not a sign of political pragmatism, to simply punt the matter away.

  • I try not to be a pessimist or an optimist when it comes to politics Joe but to call ’em like I see ’em. Many conservatives were saying that the game was up when Obama got elected in 2008. 2010 demonstrated how out of touch that view was. American political history is a series of reactions and counter-reactions. Obama went too far to the Left, and he reaped a political whirlwind in 2010 and the same is in store this November.

  • I agree with Donald. The President has just been made a liar, at least on the subject of a tax increase (which was a large part of the objection to the ACA in the first place…who is going to bear the cost?). I saw an ABC News blog link this morning to the interview I which he absolutely rejected the notion that the individual mandate was a tax. Guess Mr. Constitutional Law missed that class.

    No, I think we need to give this a few days to unfold. The analyses I’ve read aside, I believe Justice Roberts may have given those who oppose the law exactly what they need to fit it… He avoided giving the President. White martyrdom on the subject, and he exposed the law for what it is: a massive tax increase on those least able to afford it.

  • TAC does load slowly – probably a side-effect of the litany of links on the side.

    Dick Morris is saying the same thing Krauthammer says, which will probably be the theme of many variations in weeks to come. The November’s gonna be a slugfest. Hopefully Holder’s out of the SecState chair so we don’t have Black Panther goon squads threatening polling places.

    Question – Supposing a GOP quash and concomitant numerical ability, what’s the chance/point/P&L for an attempted Constitutional amendment expressly forbidding Congress to tax non-activity? I would not know how to word it properly, but, could or should such a thing be considered?

  • Good article from Jonah Goldberg today. Ignore the misleading headline – he really takes Roberts to the woodshed.

    what’s the chance/point/P&L for an attempted Constitutional amendment expressly forbidding Congress to tax non-activity?

    Somewhere between slim and none. The GOP will almost certainly have legislative majorities in both Houses of Congress, but not enough to get such an amendment through.

  • “Politics and Culture from a Catholic Perspective?” I don’t think so. I am Catholic, but this blog ‘s authors and commenters certainly do not speak for me or, I suspect, for a majority of Catholics. Alhough I would have preferred a single-payer system, I agree with the purpose and intent of the ACA, and applaud the Supreme Court’s action. There will be no tax assessed against anyone if people who have enough income to pay federal income taxes do the individually and socially responsible thing and buy health insurance. The tax is imposed only on those who do not, and for whose healthcare either health providers or the rest of us end up paying.

  • Paul:

    If yesterday you were “just about 99 percent certain that John Roberts did indeed change his vote,” the following excerpts from yesterday’s dissents should make you just about 100 percent certain. Make note of the reference to “Chief Justice Roberts” in Justice Ginsburg’s dissent and “we” in the joint dissent:

    From Justice Ginsburg’s dissent:

    In failing to explain why the individual mandate threatens our constitutional order, THE CHIEF JUSTICE disserves future courts.

    From the joint dissent:

    The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying
    the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government.

    For what it’s worth, I’m 100% certain the Chief Justice switched sides at the last minute, and I’m substantially certain he did so on the misplaced belief he was preserving the integrity of the Court by protecting it against further attacks of politicizing the judicial process. By switching at the last minute, he also gave insufficient time to what became the joint dissent to dismantle his holding that “commerce clause regulation of inactivity is unconstitutional but regulation by taxation of inactivity is constitutional” or his similarly contradictory position that, on the one hand, the penalty-for-inaction “tax” is not a direct tax because it is not akin to a Capitation which is easily susceptible to apportionment or a tax on personal property or real estate, but, on the other hand, we shouldn’t be worried that the government has just now been given the power to tax inactivity because the power to tax inactivity has been around from the founding as evidenced by . . . of course, the Capitation or poll tax which applies merely for being a citizen. I imagine with a little advance notice Justice Scalia could have put a few more barbs into the joint dissent or dissented separately.

  • I am Catholic, but this blog ‘s authors and commenters certainly do not speak for me or, I suspect, for a majority of Catholics.

    While I’m sure you have your finger on the pulse of the Catholic community at large, we’ll continue to express our opinions as our Catholic faith informs us to do.

    There will be no tax assessed against anyone if people who have enough income to pay federal income taxes do the individually and socially responsible thing and buy health insurance.

    Ah, the compassionate left in action. Nobody will be punished so long as everybody does what we demand that they do in the name of social justice. There is nothing particularly “Catholic” about such an attitude, but I’m sure you will go on believing that you are more Catholic than the rest.

    Fine then.

  • Hank: Good catch, and more evidence that Roberts did indeed change his mind, and fairly late in the game at that. And I agree fully with your take. Clearly Scalia and the rest were caught off guard, as evidenced by the the relative lack of attention the dissent paid to the Chief Justice’s opinion until the very end of the dissent. I’m sure Scalia would have torn into Roberts more than he did for his double-talk on the tax had he had sufficient time – note he only addresses the government as being sophists, and not the majority of the Court.

  • Paul,

    Good points but now there are two things:

    1. Obama and the Democrats have to run with this horrendously unpopular law still the law of the land.

    2. Obama and the Democrats can’t point to the Evil, Wicked, Nasty, Republican Supreme Court as the source of blame for what went wrong.

    Obama carries the ObamaCare millstone around his neck in to November and the Courts are out of the political fray. I actually kind of like this outcome.

  • Donna,

    A great calmness came over me as I took in the decision – all is well and its all going to be for the best. And, yes, TAC does load slowly.

  • yes mark of norwich “All shall be well, and all shall be well, and all manner of thing shall be well”

  • W F Aiken

    Would you regard a levy, confined to uncultivated land, as a tax or a penalty?

  • Would you regard a levy, confined to uncultivated land, as a tax or a penalty?

    At least that levy would be attached to property ownership; not to nothing, not to non-action. I am not saying it is a good thing, but at least there might be some reason behind it.

  • I don’t think the levy you mentioned is just.

  • “I don’t think the levy you mentioned is just.”

    Nor do I, but would it be a tax or a penalty?

  • God did not want His Chosen People to be governed by a king. God wanted the Israelite nation to be a nation of sovereign persons, ruled and governed by the Supreme Sovereign Being, disciplined by LOVE. Still, Israel insisted. God relented and gave them Saul, then David.
    George Washington had served two terms as President of the United States. When Washington refused a third term as president, the people wanted to crown him king. Washington absolutely refused. George Washington was truly disciplined by LOVE, a sovereign. As a sovereign, George Washington exemplified the true meaning of sovereignty for each and every person and our nation.
    Justice is predicated on intent. As the personification of Divine Justice, the perfect Justice of God, The Supreme Court for the United States of America is empowered by Divine Justice, to root out all corruption, all falsehood, all malevolence, any evil that would threaten the Liberty and the common good of each and every individual person, every citizen, every state and nation, for whom the Justices have taken an oath to preserve FREEDOM, through the United States Constitution.
    CJ John Roberts statement that it is not the Supreme Court’s job to correct our mistakes and /or crimes is simply Roberts reneging on his oath. Swallowed by atheism and secular humanism, Roberts aids and abets the establishment of these disordered aberrations as religion through which the FREEDOM of religion might be practiced by the sovereign persons who happen to be citizens, in spite of the fact that these aberrations have been thrown off by the plaintiffs, violate the Ninth Amendment, (the Ninth Amendment states that persons have rights not enumerated in the Constitution) and deny the freedom of conscience, the human being’s immortal soul, the human being’s rational soul. Without a rational soul man becomes a beast, a rapacious beast or a subject, a member of a herd to be driven and corralled. Man has already witnessed the violence and been subjected to inhumanities un-thought of several decades ago. To this John Roberts adds his imprimatur. “It’s not my job”
    Obamacare cannot be dealt with because it is not a law. Obamacare is tyranny, coercion and fraud, the establishment of a God-less society. Obamacare will have no new generation, only a new generation of flatliners.

  • Mary De Voe

    There is an inscription in the Chapelle Expiatoire in Paris, built by the Catholic community as an act of reparation for the murder of the Royal Family “in diebus illis non erat rex in Israhel sed unusquisque quod sibi rectum videbatur hoc faciebat.” – In those days, there was no king in Israel and every man did what was right in his own eyes (Judges 17:6)

    In fact, the phrase, “there was no king in Israel” recurs four times in Judges(17:6, 18:1, 19:1 & 21:25) and each time it goes on to describe some disaster or act of wickedness.

The Chief Justice’s Ruling: A Gross Expansion of Federal Power

Thursday, June 28, AD 2012

Conservatives looking for some kind of victory in today’s decision in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. (the Obamacare case) are pointing to two aspects of Chief Justice John Roberts’s rulings. First, a majority of the Court ruled that the individual mandate was unconstitutional under the commerce clause. Second, the Court ruled that the Federal Government could not force the states to expand Medicaid coverage under the Affordable Care Act. Therefore, the Court narrowed the scope of Congressional power in two different arenas.

Indeed, 44 pages of Chief Justice Roberts’ opinion are absolutely constitutionally sound. During the course of the opinion the Chief Justice made the same argument that many individual mandate opponents have been making for months: you cannot create an economic activity in order to regulate it under the commerce clause. “The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous.” The Chief Justice latter adds that the individual mandate “does not regulate an existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.” Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” Furthermore, “[a]llowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and – under the Government’s theory – empower Congress to make those decisions for him.”

Roberts further tears into the logic of those defending the mandate on commerce clause grounds by pointing out that other activity – such as people not eating a healthy diet – does far more to raise health care costs than does failure to have health insurance. Therefore, under the government’s logic, “Congress could address the diet problem by ordering everyone to buy vegetables.” Therefore, the government’s arguments with regards to the commerce clause are ultimately unsupportable.

The problem with those taking the rosy view; however, is that the Chief Justice’s opinion is 59 pages. The Chief takes a detour roughly halfway through the opinion that is so unfathomable, it almost reads as if an entirely different person wrote the opinion.

Chief Justice Roberts holds that despite the statutory language, the penalty for failure to buy health insurance can more accurately described as a tax. This, despite what the language of the bill actually says, and what President Obama himself even said. And that’s also in contradiction of what had just been argued when discussing the anti-Injunction act. As Carrie Severino puts it:

The main holding of the case is that the mandate is upheld as a proper exercise of the taxing power. This is a decidedly awkward result, as the first section of the result explains that the mandate is not a tax for the purposes of the Anti-Injunction Act. During the oral argument the courtroom erupted in laughter when the solicitor general was asked how he could argue that the mandate was not a tax on Monday but was on Tuesday. In the end, the court chose that implausible — even laughable — result in a fairly explicit attempt to hold the mandate constitutional.

Jeff Goldstein also mocks this bit of legal jujitsu. Intentionalism is a concept that he blogs about frequently, and he rightfully calls out the Chief Justice for his violation of the concept.

According to the CJ, a penalty is indeed a tax when it can be viewed as a tax for purposes of a ruling.  Meaning, a penalty is a tax when a Justice decides to rewrite the law to turn a penalty into a tax.  Which he justifies because the way the penalty looks to him suggests that “reasonable”  people (or philosopher kings) can, if they squint — and if they ignore the intent that turned the law into law in the first place, and turned a set of marks into a set of signs, into language — see a tax.  How that is “reasonable” is anyone’s guess:   we know in no uncertain terms that Obama and the Dems who passed the law didn’t devise the mandate as a tax (despite what they later argued); for one to conclude that it is reasonably possible to “read” a penalty as a tax,  therefore, what c0mes to count as “reasonable” must be redefined as “ignoring what we know to be true”.  And that seems antithetical to “reason.”

Roberts has chosen to see a tax where a penalty was intended — thereby rewriting the law and turning it into a new text, one which he intends, though he incoherently and disingenuously suggests that he is finding meaning in the text that can “reasonably” be ascribed to it.

Roberts justifies this change in terminology by noting that the amount of the penalty that would be levied would not be punitive – in fact the cost of paying the penalty would often be less than the cost of buying health insurance. And since the so-called penalty would not be burdensome, it’s not really penalizing behavior.


But the most egregious aspect of this decision, and one which an astounding number of commentators seem to be missing, is that the Chief Justice has massively expanded the use of the taxing power. Roberts asserts that “taxes that seek to influence conduct are nothing new.” He then rattles off a list of things that are taxed heavily in order to change behavior, including cigarettes. The problem with this is that people have to buy cigarettes in order to be taxed. This “tax” is applied to people who don’t make a purchase. In other words, the federal government is taxing non-activity. It is the same exact logic that the government used to justify the mandate under the commerce clause. All Roberts has done is shift the authority under the Constitution which justifies government intervention.

Then Roberts makes the astounding claim, also amazingly echoed approvingly in certain quarters, that “While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” (emphasis mine)

I’m actually embarrassed for the Chief Justice here. Surely he is not as incapable of making a logical progression as this statement suggests he is. But let’s make this crystal clear. If you do not purchase health insurance, you will be penalized, err, “taxed.” If you fail to pay that tax at the end of the year, what do you suppose happens to you? Does the IRS send you a series of letters pleading with you to “please, pretty please, with a cherry on top, please pay your tax?” Do they put little frowny faces at the bottom of these letters? Does the Commissioner of the IRS stand outside your window with a boom box blaring “In Your Eyes” by Peter Gabriel, the rain pelting him as he cries out “Please, just pay this tax which, by the way, should in no way be construed as a penalty?”

Oh, that’s right, you go to jail. So you totally have the right to not buy health insurance, and there’s absolutely no punishment for failure to pay the tax. This assumes, of course, you always wanted to share a very small space with a drug dealer named Zeke. Just think of this as a government-funded vacation where you may, or may not, have discomfort walking towards the end of the vacation. You see – what a bargain!

The Chief Justice makes several more spurious claims. He notes that “tax incentives already promote, for example, purchasing homes and professional education.” But tax incentives are reductions in the level of taxation for making certain purchases. Your taxes are not increased when you decide to rent a house instead of purchase one.

Roberts observes that the “Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated in the Constitution.” Really? The income tax was made allowable only through the 16th Amendment, but it’s not a tax merely for existing. It’s a tax that only applies if you earn money – in other words, it’s a tax that applies only when you engage in the activity of earning your daily bread. It’s not a “mere existence” tax, and it’s certainly not a taxation of non-activity.

According to Article I of the Constitution, Congress has the ability to issue direct taxes apportioned among the several States, but the Chief Justice himself declares that this is not a direct tax.

Section 8 of Article I states:

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Again, I fail to see how that justifies taxation of non-activity. The idea that this kind of tax would have been countenanced by the same people (by and large) who fought the War of Independence is laughable on its face.

Attempts to sugarcoat this opinion are wrongheaded. In many ways, Roberts’ basing his decision on the tax power is worse than if he had relied on the Commerce Clause, for he has actually expanded the reach of the federal government in a way heretofore unseen. It’s true that Roberts and the four dissenters limit the reach of the commerce clause, but in reality they haven’t done much more than what the Rehnquist Court did in the mid-90s in the Lopez and Morrison cases in limiting the scope of the Commerce Clause. No new ground has been broken, and no old precedents were over-ridden. Much the same can be said with respect to the Medicaid ruling. On the other hand, the Chief Justice has broadened the taxing power so that it can now be applied to non-activity. Long story short, the federal government has more power today than it did yesterday. That is the most chilling aspect of this decision.

I believe that the commenter cthemfly25 has it right in the comments on my previous post:

Congress can always use taxing authority to undermine the constitution.  And if a tax can be used to undermine the constitution and modulate and control social behavior, then the all powerful central government can use its unmitigated taxing power to regulate religion (there is no way applying Roberts’ logic that the religious mandate could be struck down), regulate home schooling or private schooling (“taxed” for not teaching homosexual curriculum), regulate the size of families (taxed for having more than two kids), regulate food or beverage consumption (taxed based on calorie intake), regulate fuel consumption (“taxed” for excessive fuel consumption), regulate choice of consumer goods such as vehicles (“taxed” for not purchasing a “green” car),—–regulate from a central authority any human or civic activity under the rubric of “taxation”.

Perhaps the Anti-Federalist Brutus was right, after all, about the taxing power under the Constitution.

This power, exercised without limitation, will introduce itself into every comer of the city, and country — It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!


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10 Responses to The Chief Justice’s Ruling: A Gross Expansion of Federal Power

  • “Long story short, the federal government has more power today than it did yesterday. That is the most chilling aspect of this decision.”

    Is this necessarily a problem that Catholics have to deal with or just Republicans, Libertarians, etc?

    I am still waiting for Mr. McClarey to lead the way now that his desire became reality. I think Mr. McClarey overestimates the number or Catholics or Christians who care in the least about this ruling.

  • Thank you, Paul Z. As I just commented on Don’s post, you, he, Bonchamps and the others here at TAC are voices of sanity in an insane world.

  • Bar prep prevents me from reading the opinions in good conscience, but my guess is that the states made a major misstep in stating that it would obviously be permissible for Congress to tax everyone and then give a tax break for everyone who purchased insurance. By admitting that there was essentially another justification to do basically the same thing, the states opened themselves up for an interpretation that desperately was seeking a peg to save the bill. That doesn’t excuse Roberts though.

  • The state now has the power to control every aspect of human life in America.
    Resist and you will be taxed. Resist the tax and you will go to jail and lose
    all of your assets, including your income.

    The state can also demand all Catholics to renounce their Catholic faith or face financial
    ruin via a tax. The state can prohibit certain categories of human beings from procreation or face financial ruin via a tax.

    Further, the state can control the population of the U.S. through the use of abortion and euthanasia of ObamaCare.

  • Pingback: Supreme Court Religous Freedom Religous Liberty Health Care | Big Pulpit
  • As I think more about this Supreme Court decision, I think it might be a good thing. I know for sure that God can bring good from it.
    The decision in fact focuses our attention on the truth of what we need to do to protect our liberties, defining more clearly what is meant and what is allowed by our allowing the government to tax.
    We always thought the government could tax– and thought that there were a few defined direct objects at the end of that sentence. Now we see to the contrary, the the authority we have given over to the government ican be construed not just to tax Something, income or property or something, but simply the authority to tax… .

    Roberts has just pointed out that the penalty acts in effect like a tax and could be construed that way, and what are we voters going to do about it?

    The courts should not be activist; the people should be activists. We look at what we need to do to protect our selves and our national interest, and do it. We define more closely what is given in that authority to tax. If the umpire continually calls a ball a strike, the batter is out, the umpire becomes meaningless and the game is over– so we need to insist on clarity concerning our constitution… enough of this mish mash about it being so old we don’t know what it means. We do too.

  • Unless government acknowledges the rational, immortal soul of the human being with its conscience, and especially the human being’s conscience, Obamacare is taxation without representation, enslavement as brute animals to a force of ‘superior” brute animals. The Planet of the Apes was especially poignant as the Statue of Liberty is seen submerged in the ocean.

  • It must be added that taxation is to “secure the blessings of Liberty to ourselves and our posterity” from the Preamble to the Constitution for The United States of America. Since our tax monies have been abused to exile The Supreme Sovereign Being, the Giver of LIfe and the Endower of all unalienable rights to man, FREEDOM, conscience, speech, peaceable assembly, our taxes are being pirated to kill our constitutional posterity in the womb, to inflict pornography, assault and battery on our virginity, innocence and civil rights to be secure in our foundational and human liberties, our taxes are being swindled into deforming the TRUTH, embracing perjury, and treason, it may not be said, cannot be said, that the monies extorted from conscientious citizens is called tax, but taxation without representation.

  • “so we need to insist on clarity concerning our constitution… enough of this mish mash about it being so old we don’t know what it means. We do too.”
    All future presidents must be given a literacy test, a comprehension test, and a reading test. Are public schools so bad that presidents and politicians can graduate without being able to read? Swearing an oath to uphold a Constitution the President cannot read demands school vouchers for private schools, until the public school start teaching reading, writing and arithmetic.

  • “The courts should not be activist”

    Exactly. That is why the ruling is horribly wrong. Four of the justices recognized that pretending ‘Obamacare’ was constitutional is an activist position. Roberts took an activist position.