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The Spectacle Blog
This probably isn’t fair, because it assumes bad motives, but…. today’s ObamaCare decision has all the indices of a poltiically arranged compromise rather than of a principled decision on the merits. Put yourself in John Roberts’ shoes: You are an institutionalist. You know that a 5-4 decision will invite Obama to make the court THE issue of the campaign and erode the court’s very legitimacy in the eyes of all Obama supporters. You desperately want to avoid that outcome, and also to maintain the good opinion of, well, elite opinion-makers.
So you try to find a way to square the circle. You want to insist that there are limits on federal powers, especially under the Commerce Clause. But you don’t want to give Obama a campaign issue. And you absolutely don’t want a 5-4, conservative/liberal “split” in the result.
SO….. you change your mind about the tax issue. You basically offer Kagan and Breyer a deal: If they will join the conservatives in ruling the Medicaid expansion to be an unconstitutional coercion of the states (thus getting liberal buy-in on SOMETHING, a very important consideration), but NOT invalidating the entire Medicaid part of the law (in other words, allowing severability of the new Medicaid mandates from the old, so as not to invalidate the entire new scheme for Medicaid), THEN you will, like Justice (Owen) Roberts in the 1930s, do another infamous “switch” and decide to uphold the law under the taxing power — thus leaving it in place, preserving the court as an apparently apolitical body, and putting the political onus on Obama and the Dems for having inflicted a massive “tax” upon the public.
And really, if you read the part of Roberts’ decision on the taxing power, it reads terribly — as if he is REALLY REALLY straining to justify the unjustifiable. He even cites, not as mere dicta but as important authority, an old aphorism not invented by, but just repeated by, Ben Franklin, and not in debates on the Constitution but in a private letter, to the effect that nothing is certain but death and taxes. How pitiful! This is what is supposed to pass as having precedential value?!?! Nuts to that!
We won’t know for decades (until some memoirs come out) whether or not it is true that Roberts switched his original vote on this. But this really looks like a jury-rigged, poorly reasoned, “Let’s Make a Deal” kind of decision. Carol Merrill is at door number three with the prize.
View all comments (17) | Leave a comment
More Blog Posts by Quin Hillyer
http://spectator.org/blog/2012/06/28/awful-suspicion
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Occam's Tool| 6.28.12 @ 4:49PM
It comes as no surprise that the worst SCOTUS decision since Dred Scott was poorly thought out. Roberts screwed the pooch. A MAN takes STANDS.
kingsmill| 6.28.12 @ 6:33PM
Quin, I came to an identical conclusion. Roberts wet himself when he contemplated the wrath of the elites. He concocted a deal, much like you've described, and got into his comfy footsie jamies and called it a day. A lack of moral courage by a typical rent seeker.
R Martin| 6.28.12 @ 6:43PM
Mr. Hillyer could be on to something here. Roberts may very well be an institutionalist, but he is also bright He has to know the legitimacy of the Court is already under question based on so many adjudications which have descended to the level of nothing more than a play on words. And he has just added to that legacy. If he is, in fact, concerned about his standing with elite opinion makers (what an offensive phrase) he is entirely unsuited for his position. So, whether or not he has saved his own face or that of the Court, he has successfully pinned the target on Romney’s back. Now Obama’s campaign theme will be to allege Republicans want to “take away your healthcare”. Unless the law is repealed, it will become a fiscal and social turning point for the country.
Thom| 6.28.12 @ 6:50PM
One of the problems of living in a Machiavellian world too long is that eventually you can’t tell reality from fiction. You can’t take anything at face value or trust anyone else including your own thoughts eventually. For these reasons I tend to see what people do for what they are not what they might become “in the long run”. The Court has affirmed that you can be “taxed” for not engaging in commerce. The rest is dangerous word games that only supporters of Prince Mac find interesting. Get back to me when Congress votes the “tax” down to zero. Be it a “tax” or a “penalty” the end result is the same to the victim of this. Death by firing squad, by hanging, by drowning…..it is all your choice right?
Bob K| 6.28.12 @ 6:53PM
As Bret Maverick said, quoting his "Grandpappy:" As my Grandpappy always said: "Never be afraid to rise above principle!"
But in Robert's case, it is less a matter of principle than of character. He has proved himself to be shallow and lacking in character.
Oldefarte| 6.28.12 @ 7:20PM
Awful suspicion Part 2: Roberts is a lawyer, a judge, a member of the ABA [or whatever it's called now] which has contributed historically and tremendously to the DNC and its candidates in order to prevent any/all tort reform efforts [which puts LOTS OF MONEY IN THEIR/LAWYERS' POCKETS as the TV commercial says]. Awful Suspicion Part 3: the LBGT organizations also PUTS LOTS OF MONEY IN THEIR/LAWYERS-JUDGES POCKETS and thereafter obtains favorable decisions concerning homosexual marriage which is contrary to common sense, the Natural Law [which is supposedly the basis for Man's Law], and complete DUMBARSEDNESS. Combining Parts 2 & 3 renders the AWFUL SUSPICION OF CORRUPTION WITHIN THE LEGAL COMMUNITY!!!!!!!!!!!!!!!
rightasrain| 6.28.12 @ 7:37PM
If this is true, Roberts put the status of the Supreme Court and his desire to avoid the appearance of partisanship above his constitutional duty to decide the constitutionality of statutes on the merits regardless of the political fallout. Thus, in an attempt to bolster the status of the Court, he actually undermined it.
Oldefarte| 6.28.12 @ 8:36PM
If we've being suspicious here, let go all the way with it. Maybe Roberts as a supposedly pro-business jurist reasoned that his voting with the liberals in approving this piece of governmental welfare garbage would surely be the straw that broke the camels back in politically nudging Romney over the finish line to victory in November? Possible, no?????
Oldefarte| 6.28.12 @ 8:39PM
Or maybe just maybe he's gots the HOTS for Sonia and wanted to tickle her under the robe so to speak???????
thirteen28| 6.28.12 @ 10:31PM
Not merely plausible, but in my opinion, likely. Roberts was called on to show the courage and the character to do the uphold the constitution and the idea of a limited federal government ... and was found wanting in both. The only other possibility is that he was just another stealth liberal who posed as a conservative to get on the court.
Neither of those two possibilities if very flattering.
rightasrain| 6.29.12 @ 8:23AM
Interesting that Roberts was more concerned about appearing partisan to liberals than he was about betraying conservatives.
AllAmericanAmerican| 6.29.12 @ 10:02AM
Quin wrote, in part:
"...and erode the court's very legitimacy in the eyes of all Obama supporters. "
Quin, you'd be hard-pressed to find Obama supporters who even know what the SCOTUS is, let alone name a justice or two. Holy cow, you think LaQuita the Welfare Queenie knows what the Supreme Court is? Does it matter if people like that don't think it is "legitimate?"
Roberts eroded the court's legitimacy in the eyes of folks like me, who work, pay taxes, try to do the right thing, and want to believe in "The System" but get let down again and again and again and again. There is literally no place left to turn now except in the hopes that States governments can somehow protect us from this massive tax/penalty/whatever Roberts called it.
If they don't, who will? Boehner and Cantor? Bwahahahaha! They had a chance last summer to stop the nonsense and instead raised Obammy's credit limit.
I am willing to sell everything I have and move to the first State that Nullifies this ruling. I bet there are thousands of others like me. And I bet NONE of us are named LaQuita or Trayvon.
Who frigging CARES what Obama supports think?
Oldefarte| 6.29.12 @ 10:51AM
Agree but why not give it one last roll of the political dice? Pull your entire Republican ticket lever in November, and then if POTUS Romney and the elected other Republicans don't exactly do as you and many of us wish [and what Romney has publically stated he'll do on day one], then pack up and head for greener pastures of a desert island with no taxiation capabilities!!!!!!!!!!!!
AllAmericanAmerican| 6.29.12 @ 11:13AM
There's always one last roll---until the next last roll.
Read an article yesterday that said the R governors were going to ignore the ruling---until after the election. That's all well and good, and sure, I'll be voting straight-R ticket, but if, OF, if Oblamer wins re-election will the R-Govs still have the stones to ignore it? Or will they cave like so many Rs before them, shrug their shoulders, and tell us to wait for the next, next (roll of the dice) election?
Oldefarte| 7.1.12 @ 10:43AM
I'm with you all the way and agree 100%, but I'm just saying that IMO the ONE/ONLY SHOT we have is with/from Republicans. Apparently they caved in per your implication recently regarding the infrastructure legislation bill in the current pipeline for consideration. The Keystone Pipeline passage was included within same and the R's gave into the D's and same was deleted [supposedly the thought was to re-substitute same into other future legislation instead]. But as you say, they caved! I'm just putting my chips on the hope that IF we finally get a complete/total R government in November with the presidency, and majority control of both houses of congress, that these caving R's will be somehow motivated to instead go along with the majority [which will be R's] and then the Demints, the Pauls and other conservatives will rule the day!!!!!
Oldefarte| 7.1.12 @ 10:48AM
PS AAA: Right now, with the D's in control of the senate and presidency, even if the R's that caved did not do so and rightly applied their stones in voting correctly/conservatively, it would no doubt come to naught since the D's in the senate would stonewall/not pass the legislation [and if they did so, this POTUS would veto same]. So these R's in doing the right thing would only be instituting a protest type vote anyway since they do not have the senate numbers to get passage!!!!