When many of us were covering the decision from the Supreme Court, one thing that was immediately noted was the the decision of Associate Justice Anton Scalia read like a majority opinion. The opinion not only referred to “the dissent” as if it were the majority opinion (though sometimes justices even in dissent can refer to other dissents). Reports are now indicating that Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the Affordable Care Act. The report is a serious breach in the normally secretive court in its internal deliberations and contains considerable detail showing a hard effort by the Court’s swing justice Anthony Kennedy to convince Kennedy to return to the fold. The report is likely to increase the feeling of betrayal by those who felt that opinion harmed federalism by reaffirming the taxing power as an easy avenue to circumvent state rights. That was the subject of my column the day after the ruling.
The conservatives responded to the defection by refusing to sign on to any part of the Roberts decision, even though they were in agreement on some parts.
The reports say that Roberts initially voted in conference with the conservatives – giving himself as the most senior justice on that side the presumptive majority opinion. Roberts was generally viewed as a lock for the conservatives as opposed to the more moderate Kennedy.
As I said in my USA Today column, I credit Roberts to ruling as he believed was correct — regardless of the backlash or popularity. I simply do not see the consistent line of principle in the rationales.
I have previously expressed my disagreement with the Roberts opinion on federalism grounds. This will certainly be one of his most famous opinions, but I would not call it one of his best. The opinion seems to me to be hopelessly conflicted and inconsistent. After denouncing the use of the Commerce Clause to justify the law as a claim without a limiting principle, he embraced a view of the tax authority that sweeping and potentially limitless under this “functional approach.” He expressly states that tax authority can be used to simply influence decisions of citizens.
Moreover, I do not get the widespread view that this opinion showed Roberts breaking away from the rigid 5-4 split of the Court saving its credibility. This was a 5–4 decision that was heavily splintered. This is the only time that Roberts has joined a 5-4 decision on the side of the liberal justices. I do not see how this is such a roaring victory for collegiality or unity. What I do see is another example of why we need to expand this Court. As expected it can down to one justice — in this case a justice who literally flipped the result in the final stretch of the deliberations. With only 9 nines, individual concurrences can undermine the clarity or meaning of such a decision. The reason I wrote the earlier column (and a longer piece) on the expansion proposal in the Post — the follow up column in the Guardian — was because the momentous decisions this week shows the dangers of this concentration of power — a concentration that other leading nations avoid. I would have felt the same way if the result were flipped — as many of us expected.
With a larger court, it is certainly possible to have a 9-8 split (many people missed the fact that I proposed a 19 member Court in the hopes of returning to two justices serving by designation each year on lower courts). However, the experience with both appellate courts sitting en banc and foreign high courts show that these alliances are more fluid and less predicable. I am scheduled to discuss this proposal on NPR’s Talk of the Nation today.
Source: CBS
“This is the only time that Roberts have joined a 5-4 decision on the side of the liberal justices</I."
That is what I said in comments on the original post here.
I also said that he was shocked at the judicial activism of his conservative colleagues, whom he now sees as having lost their judicial restraint, and have set a course for judicial catastrophe.
Another law blog pointed to the reference in the dissent of Scalia to "The Dissent", which later became the majority.
That seems to me to be a smoking gun that supports the hypothesis that he changed his mind after reading the extremist rhetoric posing as judicial professionalism.
The argument, then, is that he came to his judicial senses, but the extremest dissent argues that he became a traitor.
I put in a bad end tag for italics … hope this fixes it.
Well not all things are as they seem…..I wonder if some are having buyers remorse…… Except in this matter its lifetime…….I wonder if Scalia leaked the internal document….. Oh well, sour grapes have been sung about before…..
The other conservative Justices couldn’t stand the fact that Roberts was not going to play ball with them so they did the adult thing. They tattled on him!
Sounds like conservative payback to me founded on nothing more than rumor. Here’s how one conservative blog described CBS’ commenter Jan Crawford:
“Crawford, moreover, is a very well connected conservative reporter who has, at times, worked closely with the Federalist Society to drive conservative legal narratives. Nothing is certain, but it is likely that one or both of Crawford’s sources is a conservative justice.”
Crawford has an agenda and it’s a little too Fox News-ish for my taste.
http://thinkprogress.org/justice/2010/06/05/176825/crawford-kagan-smear/
While the conservative cutting their noses off is childish, it only is an expression of “covering their A..”, and damage control vv their “buyers”.
I’m sure they are promising now that they will nail his cojones to the table next time.
Bought is bought. So wonder who’s paying Roberts?
The judgememt judgomg is for others. It is the public impact that is important to me
BTW, I don’t think her “unnamed sources” are other conservative justices. Imagine Roberts reaction if he concluded that they were his colleagues. His authority to assign cases and voting power to shape opinions on an ideologically equally divided court is a sleeping giant the conservative faction would not want to awaken.
Another rule of the successful application of power is that power never suffers a betrayal of privity gladly. Every person who has ever been in a close relationship knows that rule.
Mespo,
When you want to smear someone, why let facts get in the way….. I am interested in how she obtained these memos….. Reckon they are in his personal papers at the schools library….. Or do you think they were intentionally leaked…… But then again, I am one for open deliberations…..
Here is some of the reasoning regarding the suspected change by Roberts:
(Salon). Did he finally realize that the wild-eyed extremists had sucked Kennedy into the vortex and he wanted out of the ill advised judicial activist position the far right was taking?
AY:
Years ago, I remember going through a file box at the Va. Supreme Court prior to arguing an appeal. Among the record was the apparently misplaced clerk’s memo to her particular justice outlining the case and recommending an analysis. It said I should win and indicated some discussion with the Justice to that effect on one of the issues. I lost — with the Justice in question writing the opinion.
These memos are all over the place and come from everywhere. They are opinions and nothing more.
Well heads have been exploding since Thursday,and I don’t see that quieting down for awhile.Nor do i suspect that Chief Justice Roberts had any idea of the vitriol that would be coming his way.
eniobob 1, July 2, 2012 at 8:39 am
Well heads have been exploding since Thursday,and I don’t see that quieting down for awhile.Nor do i suspect that Chief Justice Roberts had any idea of the vitriol that would be coming his way.
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Yep, the olde syndrome: “have you seen my people, I can’t find them, please take me to them, I am their leader.”
I’d be happy to join with any of those on the right who’ve expressed their anger about his rational decision by calling for Roberts’ impeachment.
Some think that the anti-health care movement talking points have been engineered by the military propagandists:
(Your Health Is Their Number One Enemy?, quoting National Defense Magazine). The military spends more on WMD, wars, and fortresses in 192 nations around the world, than the other nations combined.
They have moved USCENTCOM to the oil zone of a foreign nation, from Florida where it once was.
They moved in next door to Haliburton, who also moved their HQ to the land of Oilah Akbar.
The largest Naval port, tallest building, and oil kingdom is there.
Clue?
There were some writing comments here on this case when it was first argued.
They postulated that ACA would be uphold because it was to the benefit of the private insurance industry and that Roberts would lead the way. Perhaps they were right, though the Thomas nay vote might belie this theory.
It reminds of all other things republican (at least since Obama won). They wanted to present the dissent as the majority even when it wasn’t. Lie and misrepresent enough and it will be the truth, ask people if they like individual parts of the ACA and they approve, ask if they approve of “Obamacare” and the republican/tea party influencing lies become apparent – Oh yes I like pre existing coverage now ok, kids til 26, closing donut hole, etc but Obamacare? Oh no that is awful.
There are hints Roberts did change his stance (referring to Ginsberg dissent (per Dredd comment) but when is that a crime (or awful)? The profeesor notes this is the first time Roberts did not join the usual 5-4 split, along political party lines. This is a bad thing? I have to wonder had the result been 5-4 the other way what would the complaints be then? It would have been further proof of the total politization of the Court.
The NYT had a piece showing that this was the first time the CJ voted with the “liberals” in a 5-4, which also showed how often the other Js had done so. I am not sure what this statistic is intended to prove and to me it seems somewhat meaningless for a couple of reasons.
First, it is conventional wisdom that J. Kennedy is a swing vote, so any time the CJ voted with J. Kennedy and the liberals in 6-3 appears equally as meaningful as the 5-4. Also, by way of example, the Times listed only two cases where J. Scalia sided with the liberals (as the majority in a 5-4), but I know he has voted with J. Ginsburg more often than that (often in the minority, if memory serves).
But since the issue is at hand, I wonder how often the liberals are with the four conservatives in a 5-4 majority. (Recognizing that Js Kagan and Sotomayor are relatively new additions to the Court.)
A Repost;
“eniobob
1, July 1, 2012 at 2:11 pm
Thanks for the lead in AY:
“Anonymously Yours
1, July 1, 2012 at 9:05 am
We can count men by their actions…..”
In Supreme Court Term, Striking Unity on Major Cases
By ADAM LIPTAK
Published: June 30, 2012
http://www.nytimes.com/2012/07/01/us/supreme-courts-recent-term-a-new-phase.html?_r=1&ref=politics
Anonymously Yours
1, July 1, 2012 at 3:10 pm
Eniobob,
Apparently I can be of service….. You’re very welcome….
leejcaroll
1, July 2, 2012 at 9:36 am
” have to wonder had the result been 5-4 the other way what would the complaints be then?”
One small example:
“By ALEXANDER BURNS | 6/21/12 4:20 PM EDT
Yes, you read that right.
Indiana Treasurer and GOP Senate candidate Richard Mourdock applauds the Supreme Court’s decision invalidating the Affordable Care Act in a new video uploaded to his YouTube account.
The catch, obviously, is that the Court hasn’t ruled on ACA just yet, and won’t do so until next week. Mourdock’s video, titled “ObamaCare3,” is apparently a pretaped message in the event that the health care law goes down, but it hit the Web early.”
http://www.politico.com/blogs/burns-haberman/2012/06/mourdock-cheers-scotus-for-striking-down-obamacare-126959.html
http://www.huffingtonpost.com/2012/07/02/john-roberts-health-care-decision_n_1642739.html?ref=topbar
“Some legal scholars suggest Roberts produced an essentially conservative opinion with a liberal outcome”
According to this article it is not the first time Roberts has joined liberals: “Just three days earlier, Roberts, joined by Kennedy this time, sided with three liberal justices in the Arizona immigration case.”
Maybe Roberts decided the concurring side was correct. Instead of knee jerk joining with the conservatives, maybe he finally showed what the dems expected of him when they confirmed him, a conservative with integrity who will vote law, not party. Just took him a very long time to get there.
What I found most interesting was that the report I read sounded like a love letter to Justice Kennedy. To me that indicates where the leak came from, the boys & girls in his office. Interesting politics inside their cloistered halls as well as outside of it.
lee,
as I said on a different thread, maybe he is an “umpire” after all!?
Rafflaw, I am sorry I guess sometimes I think too concrete and not abstract. I didnt get it then and dont now ): sorry.
Eniobob thats worse then the repubs yelling gleefully when CNN and Fox misreported that ACA hadbeen struck down.
Mr. Turley…can you advise me on this??
Citizens for Responsibility and Ethics in Washington(CREW) and National Security Archive(NSA) filed a suit against the EOP for email and records…and the judge ordered a settlement…. http://www.gwu.edu/~nsarchiv/news/20091214/index.htm …
my case against the EOP was for emails and documents during the same time period as CREWS and NSAs suit, but the judge ruled against me….is the judiciary subject to political manipulation…see my suit on FBI wiretapping the Supreme Court…(IS THE SUPREME COURT SUBJECT TO POLITICAL MANIPULATION BY THE FBI?????????? SEE… w.voinche v. FBI, 940 F.Supp. 323(DDC 1996)….no this is Amerika….
leejcaroll
1, July 2, 2012 at 10:02 am
“Eniobob thats worse then the repubs yelling gleefully when CNN and Fox misreported that ACA hadbeen struck down.”
“One small example”
Chief Justice Roberts gave the Republican party a “root canal”with no novacane,with his decision for they are still screaming.
” “Sometimes, due to trauma or decay the “nerve” inside the tooth dies off. Any passing bacteria find this a source of nourishment and proceed to munch on the dead nerve and have lots of babies “
Some polls are indicating that the favor of the ACA is going up following Roberts’ reportedly changing his vote.
Does that mean that some republicans are in accord with Roberts?
Think it means that the dems finally (wish I could bold that but dont know how here) are getting the word out about the benefits of the ACA, something they should have been doing everytime a new part of it became law.
leejcaroll 1, July 2, 2012 at 9:36 am
…
There are hints Roberts did change his stance (referring to Ginsberg dissent (per Dredd comment) but when is that a crime (or awful)? The profeesor notes this is the first time Roberts did not join the usual 5-4 split, along political party lines. This is a bad thing?
=================================
I think he sincerely felt that the right wing of the court (Scalia, Thomas, Alito) had gone way to far right, dragging Kennedy along in the process, and that it was bad for the court and the nation.
So, in that light I can’t say that it was bad or that Roberts was wrong in this case.
“I think he sincerely felt that the right wing of the court (Scalia, Thomas, Alito) had gone way to far right, dragging Kennedy along in the process, and that it was bad for the court and the nation.”
How so? the CJ agreed with them as to the Commerce Clause and it is hard to see how the dissent’s rejection of the Tax argument could be construed as “going to the right.” (Also, if Ms. Crawford’s sources are right, J. Kennedy was not dragged by the other dissenters, but rather was trying to drag the CJ to, dare I say it, the dark side.)
Doesn’t matter. Not only Fox but CNN relying on repub speaking points.http://mediamatters.org/blog
interesting articles about Fox also,
Switched sides? What are the two sides? Three sides maybe? Where is Scalia on the Confrontation Clause vs. Breyer? Where is Scalia on the First Amendment v. Breyer? Seems like Scalia can be for liberty when its the Confrontation Clause and against it when its Free Speech.
So Roberts votes with the other three New Yorkers and on Calfornian. Maybe that means the four New Yorkers are on one side. Scalia and Alito hail from the other side of the river over in New Jersey.
Or maybe you mean RepubliCon side vs. Democrat side. So here Roberts is voting with the Dems. That is switching sides I suppose.
Most perceptive Court watchers dont designate “sides”. Side, depends on the issue. When its taxes then there are no sides. When it is the integrity of the Court perhaps Roberts chose the right side. If there is a side. Perhaps he said that he would have a side order of the Sinter Klaus to go with the Commerce Clause and the Tax Clause. Think how many sides there might be if we have 19 Justices instead of 9. Maybe there are 8 sides and one “go along” named Thomas. We know what he is: Unreconstructed. That is why he hung the Confederate Flag on the wall behind his desk in the Attorney Generals Office in Jefferson City, Missouri in the 1970′s. He is Unreconstructed on the 14th Amendment. Fits right in with John Danforth’s notion of a good black man in those years. Put him on the EEOC as Chairman to screw that up and as his reward: Supreme Court. The Confederate Flag story kind of shocked the Democrats from the North, coddled the Democrats from the South and won over the Southern Strategists trying to make RepubliCons out of former redneck Democrats. Viola, confirmation by the Senate. He replaced Thurgood Marshall. What an injustice.
Sides. Cases on the Court can be like playground baseball games. Choose sides for each game.
http://www.c-spanvideo.org/program/CareLawDeci
From- GeorgeTownUniversity Law School
mahtso 1, July 2, 2012 at 11:03 am
“I think he sincerely felt that the right wing of the court (Scalia, Thomas, Alito) had gone way to far right, dragging Kennedy along in the process, and that it was bad for the court and the nation.”
How so? the CJ agreed with them as to the Commerce Clause and it is hard to see how the dissent’s rejection of the Tax argument could be construed as “going to the right.”
===========================================
The more lasting approach would be to dispense with the dicta about the Commerce Clause, and the opinions of the dissent, because that is generally unavailing when citing and using the case to argue future cases.
What parts of the case would one cite when using it in a future argument, knowing that “the worst to cite is dicta”?
Why was the case decided supporting the mandate under the congressional power to tax?
The reasoning on that subject seems sound:
(Roberts’ opinion, bold added). That is long-standing law, so the majority decision does not seem controversial in that light.
What I mean by “Going to the right” is when the only ones supporting, in effect, overruling the precedent of the License Tax Cases was the right wing of the court.
Dredd,
Because the License Tax Cases quote applies to “activity” would it have been necessary to overrule those cases to find there was no tax authority?
And because it would not have been unreasonable to conclude that Congress has the authority to levy the tax, but (based on legislative intent) did not do so here, a ruling striking down the law could have been issued without overruling those cases.
Thanks for the response.
Is this possibly the same leaked “memo” that caused Fox News to initially and erroneously announce victory over ACA?
eniobob,
Thanks for the GeorgeTownUniversity Law School/C-Span link
“Is this possibly the same leaked ‘memo’ that caused Fox News to initially and erroneously announce victory over ACA?”
The same thought crossed my mind as well, Blouise.
mahtso 1, July 2, 2012 at 2:54 pm
Dredd,
Because the License Tax Cases quote applies to “activity” would it have been necessary to overrule those cases to find there was no tax authority?
And because it would not have been unreasonable to conclude that Congress has the authority to levy the tax, but (based on legislative intent) did not do so here, a ruling striking down the law could have been issued without overruling those cases.
Thanks for the response.
==========================
You are welcome.
As to your question, “Because the License Tax Cases quote applies to “activity” would it have been necessary to overrule those cases to find there was no tax authority?”
I tend not to rely on my own opinion in such matters, but the answer I think is “not in this case”, based upon three enumerated constraints.
So let me quote from the authority of constitutional law professors, and more specifically, from a brief section filed in the lower courts in this litigation:
(AMICUS CURIAE BRIEF OF CONSTITUTIONAL LAW PROFESSORS,US DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION, #3:10-cv-00188-HEH, bold added for clarity). The dissent, once the case got to the Supreme Court, may not agree with those professors, but the majority in the Supreme Court did in substantial degree.
maybe j.r. had a “come to jesus” moment when he saw clarence with an “i’m with stupid” t-shirt on
pete-
Or maybe Chief Justice Roberts found out who put the pubic hair on his Coke can.
Pete and HenMan,
Hilarious!
Reblogged this on Clantily Scad: Dyslexistentialist Commentary of the Culturally Incorrect Kind and commented:
Well, shit titties. Money quote: “This will certainly be one of his most famous opinions, but I would not call it one of his best. The opinion seems to me to be hopelessly conflicted and inconsistent.”
Is it possible that Roberts was looking at more than the ACA?
http://www.alternet.org/civil-liberties/why-right-has-new-legal-ammunition-its-quest-end-medicare-social-security-and-our?akid=9193.259653._Tw3Aw&rd=1&src=newsletter690298&t=13&paging=off
Why the Right Has New Legal Ammunition in Its Quest to End Medicare, Social Security and Our Entire Social Safety Net
When he declared the healthcare mandate constitutional, the chief justice set up an argument for taking down the social safety net. Now right-wingers are coming for it all.
Excerpt:
In the case decided by the Supreme Court in June, the right-wingers who brought the case argued that the individual mandate was unconstitutional. Having failed in that claim, conservatives are now arguing that unless the subsidies are administered by exchanges created by the states, they are forbidden by the language of the ACA. If the federal government comes in and sets up an exchange because a recalcitrant state refuses to participate, those exchanges, Adler and Cannon argue, cannot offer subsidies for insurance coverage — leaving no means of affordable coverage in most of the red states for those who need it most.
Should such an argument pass muster before the court, people lacking means would be stuck with a penalty and no healthcare coverage, increasing support for a repeal of the law.
But it doesn’t end with healthcare reform. If the court should ultimately rule that states have the power to challenge federal subsidies for health care in this fashion, it opens the door to similar challenges in other cooperatively run programs such as family planning assistance, special education, affordable housing, and nearly every bit of social welfare legislation that is grounded in a partnership where states administer federal dollars.