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Obama and Roberts
Upholding ACA, laying groundwork to strike down the New Deal
In my post yesterday, A dark cloud on this sunny day: Roberts Court embraces Constitution in Exile, I argued that while the result of the case was wonderful for millions of Americans, the Constitution in Exile poison pills Chief Justice Roberts dropped, ideas that were agreed with by the other four right-wing members of the Court, created great risk for our modern national government.

In sum, the ACA decision makes the Supreme Court an even more important issue in the upcoming election, not less of an issue. Why? Because whether the pernicious ideas the Chief Justice dropped in his opinion grow into established constitutional branches of our jurisprudence largely depends on who the future members of the Court will be. We all know that four of our current justices are in their 70s. We wish them all good health (though we wish some of them—Scalia! Cough! Kennedy! Cough!—decide to enjoy their autumn years in retirement), but openings in the Court seem likely over the next four years. Who names the replacements is critical.

Jack Balkin, who in an interview with Adam Bonin and me presciently described the mandate as an exercise of the taxing power by Congress, wrote yesterday:

It's hard to predict what will flow from this opinion doctrinally. If President Obama manages to appoint a majority of liberal justices in his second term, most of the innovations in this case will be forgotten. The new spending clause doctrines will be confined, and the Commerce Clause language treated as dicta or made practically irrelevant. If Mitt Romney wins, on the other hand, he may be able to appoint a strong conservative majority to work with Chief Justice Roberts. Then, in hindsight, Roberts' seemingly compromised opinion won't be very compromised at all. His apparent flip-flop won't be understood as a change of mind. Instead, his opinion may turn out, in hindsight, to be the beginning of an important transformation in constitutional law. What will happen can't be deduced from the four corners of these documents. It will depend on the Supreme Court appointments of the next decade
Translation: There is no more important progressive project in this election year than the reelection of President Barack Obama.

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Comment Preferences

  •  We face an enemy that has been working (36+ / 0-)

    consistently to overturn the New Deal for nearly 80 years. None of the current leaders of this battle were adults or even teens when this battle began.

    They won't give up. Ever.

    We can't give up. Ever.

    That includes this year.

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra En théorie, il n'y a aucune différence entre théorie et pratique, mais en pratique, il y a toujours une différence. - Yogi Berra

    by blue aardvark on Fri Jun 29, 2012 at 10:25:12 AM PDT

    •  An important, nay, vital concession to reality (13+ / 0-)

      These people are our enemies. There is no comity or fairness in our political/economic system. For the sake of our children and their children we need to stop pretending that there is...

      And fight!

      We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender...

      "I don't try to describe the future. I try to prevent it." - Ray Bradbury

      by chuckvw on Fri Jun 29, 2012 at 10:32:16 AM PDT

      [ Parent ]

      •  They are eternally our enemies, eternally (3+ / 0-)
        Recommended by:
        blue aardvark, rbird, chuckvw

        enemies of the US, enemies of the freedom, enemies of humanity.

        They are the original evil. They are the original sin.

      •  What is our policy? (2+ / 0-)
        Recommended by:
        rbird, chuckvw
        We have before us an ordeal of the most grievous kind. We have before us many, many long months of struggle and of suffering. You ask, what is our policy? I will say: It is to wage war, by sea, land and air, with all our might and with all the strength that God can give us; to wage war against a monstrous tyranny, never surpassed in the dark and lamentable catalogue of human crime. That is our policy. You ask, what is our aim? I can answer in one word: victory; victory at all costs, victory in spite of all terror, victory, however long and hard the road may be; for without victory, there is no survival.

        In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra En théorie, il n'y a aucune différence entre théorie et pratique, mais en pratique, il y a toujours une différence. - Yogi Berra

        by blue aardvark on Fri Jun 29, 2012 at 10:59:00 AM PDT

        [ Parent ]

        •  Doing the unpopular (0+ / 0-)

          dirty work of a failed and reviled Healthcare Denial Industry, while concurrently taking the chance for good, popular alternatives clean off the table, seems an odd way of going to war against the right.

          Actually, it seems kind of more like being stooging for the right.  Essential, saving stoogery at that.

          Toads vs. their stooge enabler wonks isn't really struggle at all.  Much less war.  

          Much less rousing to anyone, or political at all.

          Please don't feed the security state.

          •  I did not intend this to be partisan (0+ / 0-)

            or particularly political...

            These people are our enemies. There is no comity or fairness in our political/economic system. For the sake of our children and their children we need to stop pretending that there is...
            However, the stooges are more susceptible, if only slightly,to our influence than are the toads, which are in fact snakes!

            "I don't try to describe the future. I try to prevent it." - Ray Bradbury

            by chuckvw on Fri Jun 29, 2012 at 04:58:56 PM PDT

            [ Parent ]

  •  Hopefully, Obamacare will energize Dems & Indys (14+ / 0-)

    to vote Democratic to ensure Obamacare, cause Repubs are just itching to throw it in the trash heap of history.

    "Tax cuts for the 1% create jobs." -- Republicans, HAHAHA - in China

    by MartyM on Fri Jun 29, 2012 at 10:28:20 AM PDT

    •  Already there... (3+ / 0-)
      Recommended by:
      fumie, MartyM, Lying eyes

      After returning back to work, as an administrator at the local college, from an extended stay in the hospital in March my wife found out 2 weeks later that she was going to be laid off.  Today is her last day at work and while it'll be tight for us, I still donated last night to the Obama campaign, set up a place for people to donate for the campaign, and am looking to volunteer.  I may be disappointed that policies I would have loved to see implemented (Single-payer) were not and policies I wanted to see gone (Guantanamo) are still around, I am sure that the overall direction we have been going has been positive.  I feel sure that if given a strong majority in Congress, and a 'repeal' of the filibuster rules, this President can and will get things done, and lead us to a better future.  I am afraid, though, that it can't be just the President that we support, but all good Democrats in both houses.  Otherwise, Republican obstructionism will keep us from  getting the Supreme Court Justices we need.

  •  An answer for Justice Ginsberg's question: (1+ / 0-)
    Recommended by:
    Magster
    Why should THE CHIEF JUSTICE strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever developing modern economy? I find no satisfying response to that question in his opinion.
    You should have thought of that before you signed off on the decision.  

    The answer is because the Commerce Clause and the Necessary and Proper Clause are not as expansive as you think they are.  They don't give carte blanche to Congress to pass anything a temporary majority wishes to pass and then justify it by citing those clauses.  Our Constitution set limits on what the Federal Government can do and, short of an unlikely amendment of the Constitution, it's going to stay that way.   Ask FDR.  

    You don't need to firebomb Dresden to prove that you can fly the plane.

    by SpamNunn on Fri Jun 29, 2012 at 10:29:44 AM PDT

    •  I don't understand your comment (11+ / 0-)

      She had her own concurrence because she barely agreed with Roberts beyond his result.

      Ok, so I read the polls.

      by andgarden on Fri Jun 29, 2012 at 10:32:04 AM PDT

      [ Parent ]

      •  That's OK. You don't have to understand it. (4+ / 0-)
        Recommended by:
        science, Magster, shaharazade, feebog

        Her question was rhetorical.  She knew exactly why he said what he said.  She'd have to be stupid to not have understood.  

        Roberts is smart.  He gave up the 5th vote in exchange for a first crack at reeling in the ability of Congress to use the Commerce Clause to justify any act .  He made the Administration call the HCA a tax, and he straight out issued a challenge to the electorate when he said that if the people don't like that tax, they can fix things with the ballot box in November.  The battle has been won as to Health Care.  The war is yet to be won.

        Roberts will be the Chief for 20+ years.   The conservative block will be there on life support until there is a Republican President to replace them.  At best, Obama may get to replace a justice in kind if Ginsberg can't hang in there.   The battle for the Supreme Court won't really occur, in earnest until at least 2016.  

        You don't need to firebomb Dresden to prove that you can fly the plane.

        by SpamNunn on Fri Jun 29, 2012 at 10:38:37 AM PDT

        [ Parent ]

        •  You are not prescient. (1+ / 0-)
          Recommended by:
          Pierro Sraffa

          Ergo, it's a gamble. You may be ready to roll those dice. I'm not.

        •  Concur (1+ / 0-)
          Recommended by:
          GradyDem

          Ginsberg is the oldest Justice at 79, and has already had two fights with cancer.  Can't see her going much longer.  Scalia just turned 76 and Kennedy will be 76 next month.  Unless one of them faces a very serious health issue or dies, they are not going anywhere in the next 4 years.  We are going to need another Democrat in the White House after Obama, and a two termer at that, to turn this back into a moderate to liberal court.  By 2024 it could be just Roberts an Alito as a small conservative majority.  Or, we could be looking at a 6-3 or 7-2 conservative majority.

    •  That quote from Justice Ginsburg (5+ / 0-)

      states exactly the disagreement between (1) "liberal" justices who would read the Constitution in an expansive way, taking what they perceive to be the principles behind it and applying those principles (not the literal words like a textualist or the original intent like an originalist) in a way that adjusts the scope and meaning of the Constitution to reflect the times, and (2) "conservative" justices, who believe that the people (through their elected representatives) put certain things in the Constitution, and didn't put certain things in the Constitution, and it's up to the people (through the amendment process) not the SCOTUS, to change that if the people think the Constitution needs changing.  

      She knows exactly what the response from the conservatives is.  She doesn't find it "satisfying" because she disagrees with it, and I can understand that.  But there's no mystery here.  It's just a basic, fundamental disagreement on how the SCOTUS should apply the Constitution.

      •  Exactly. You posted this while I was typing. (0+ / 0-)

        Great minds.....

        You don't need to firebomb Dresden to prove that you can fly the plane.

        by SpamNunn on Fri Jun 29, 2012 at 10:39:52 AM PDT

        [ Parent ]

      •  judicial review and the history of the (1+ / 0-)
        Recommended by:
        Armando

        Constitution play little role in the view that you Spamm, Alito, Roberts, Scalia, and Thomas advocate. Obviously, there are not a lot of people here who are going to agree with the "original intent" view you all espouse over against the view of the Constitution as a living document like Justice Ginsburg holds.

        •  I see merits on both sides (3+ / 0-)
          Recommended by:
          SpamNunn, wsexson, VClib

          and I don't put Roberts in the same category as Scalia and Thomas, by the way.  This opinion demonstrates that.

          On the one hand, if you see the Constitution as a democratic document, in place and governing only because the people (through their representatives) put it there, it makes sense to interpret it in a way to give meaning to what the people intended, and to decline to put something in the Constitution that the people did not themselves put there -- that if change is necessary, that's why the people put an amendment process in the Constitution.  The risk is that you read it too narrowly, resulting in some injustice because the people who wrote the Constitution could not foresee the future.  

          On the other hand, if you see the Constitution as a statement intending to capture principles that exist in the abstract, that we are all entitled to regardless of whether people chose to put it in the Constitution or not, then it makes sense to read the Constitution so as to capture those principles that you believe we should uphold and apply those, even if the people did not specifically include them in the Constitution.  The risk in that approach is that it gives Justices too much power and takes away the democratic voice of the people -- the Constitution is whatever they say it is, which is great when a majority agrees with you, not so great when there are five votes against you (as FDR found out when "conservatives" took this approach during his term).  

    •  Huh? (1+ / 0-)
      Recommended by:
      shaharazade

      The text of the Commerce Clause and Necessary and Proper Clause are open ended, and so the ultimate limits of those powers are essentially whatever the Supreme Court says they are.  FDR was president at the time of the Wickard decision, which was the broadest expansion of Commerce Clause power in modern history.

      The pleasure of hating...eats into the heart of religion...[and] makes patriotism an excuse for carrying fire, pestilence, and famine into other lands. - W. Hazlitt

      by rfahey22 on Fri Jun 29, 2012 at 10:39:55 AM PDT

      [ Parent ]

      •  And, thus, the pendulum swings...... (1+ / 0-)
        Recommended by:
        thomask

        You don't need to firebomb Dresden to prove that you can fly the plane.

        by SpamNunn on Fri Jun 29, 2012 at 10:41:32 AM PDT

        [ Parent ]

      •  This is where the basic disagreement lies. (2+ / 0-)
        Recommended by:
        SpamNunn, VClib
        the ultimate limits of those powers are essentially whatever the Supreme Court says they are
        See my comment above.  "Conservatives" would disagree with this. They would say that the people in 1789 (through their representatives) put limits on Congress' power, and if the people think that those limits should be expanded, the people should amend the Constitution, and it's not the role of the SCOTUS to amend the Constitution for them.  

        The CJ's opinion was conservative (I said "conservative," not "Republican") in all respects -- reading the Commerce Clause in a way he thought it was intended to be read rather than expanding it to give Congress a power he thought the people did not ever intend to give when they wrote the Constitution,  while still giving deference to the legislative branch by declining to strike down a law where there is any possible basis for finding it constitutional.  

        •  judicial review. Marbury vs Madison . nt. (0+ / 0-)
          •  That's exactly what conservatives rely on (4+ / 0-)
            Recommended by:
            SpamNunn, shaharazade, wsexson, VClib

            Marbury v. Madison.  What that case says is that the Supreme Court is the body to interpret the constitution.  That allows them to tell Congress that Congress has exceeded its power under the Constitution.  

            CJ Roberts was relying on Marbury in the section that said, "I don't think the Framers ever intended to give Congress the power, under the Commerce Clause,  to compel someone to enter an interstate market."  He was interpreting the Constitution as Marbury says, but he was approaching that task from the view that he should uphold the intent of the people who wrote the Commerce Clause and voted to put it there.  Justice Ginsburg, on the other hand, would -- as she says -- interpret the Commerce Clause to allow Congress to do what she believes it needs to be able to do in today's world.  

            Marbury says nothing about which method of Constitutional interpretation is "correct."  Because there is no "correct" answer. The Constitution does not say how it is to be interpreted.  There's only your answer based on your philosophical views of what the Constitution is supposed to be.  

            •  Where does the 1792 Militia Act stand? (0+ / 0-)

              As far as how the founding fathers felt about the limits of Congressional power.

              •  Different constitutional provision (1+ / 0-)
                Recommended by:
                VClib

                was underlying that, so it said nothing about Congress' power under the Commerce Clause.  

                The CJ addressed that in fn 3 of his opinion:  

                GINSBURG, post, at 35, n. 10 (opinion concurring in part, concurring in judgment in part, and dissenting in part), are not to the contrary.  Each of those mandates—to report for jury duty, to register for the draft, to
                purchase firearms in anticipation of  militia service, to exchange gold currency for paper currency, and to file a tax return—are based on constitutional provisions other than the Commerce Clause.  See Art. I, §8, cl. 9 (to “constitute Tribunals inferior to the supreme Court”); id., cl. 12 (to “raise and support Armies”); id., cl. 16 (to “provide for organizing, arming, and disciplining, the Militia”); id., cl. 5 (to “coin Money”); id., cl. 1 (to “lay and collect Taxes").
                The CJ was consistent in that regard.  He held that the Framers did not intend Congress to be able, under the power to regulate interstate commerce (the Commerce Clause),  to compel some to enter into commerce in the first place.  However, he also concluded that the penalty could be viewed as a tax, and that another provision of the Constitution -- Congress' power to tax -- authorized Congress to do that.  

                In other words, he said that if the penalty was something OTHER THAN a tax (like if you got a citation, like for speeding, or if it were a criminal misdemeanor to violate the law) the law would have been unconstitutional under the commerce clause.  But since the "penalty" could be seen as a tax (even though that's not what Congress intended it to be) he would uphold it under Congress' power to levy taxes.

                •  OK, but where does "compel to enter into commerce" (0+ / 0-)

                  ... come from? Isn't that the question? This sounds to me closely skin to the argument that the states made and conservatives relished because it was so simple: the constitution should not allow Congress to force me to do something I should be able to choose not to do.

                  That's a very suspect general principle. A lot of law does just that. For example, the old legal maxim that you must so use your property as not to injure or damage another. And that reference (I think it was in Scalia's opinion) - to the effect that consuming a bottle of aspirin would put you into health-care-commerce under the government's argument - is derogatorily trivializing.

                  It is no stretch to say that the general public is "in the health care market" and health care and insurance for it is in interstate commerce. A whole pattern of pervasive utility-type regulation was sustained as constitutional under the rubric that a purveyor "stood at the gateway of commerce and took the toll of all who passed." (That, if memory serves, was a case involved grain silos on the prairie.) There can be no reasonable doubt that health care providers of all kinds are in this commanding position and that a very large proportion of the public comes into contact with them whether individuals choose it or not.

                  Some people - a minute percentage, I believe - may choose not to come into contact with the medical profession, and possibly risk their life to preserve their freedom to choose. But their freedom should not - as a matter of public policy - deprive the rest of the public of a workable health care system. Which, for a significant proportion of the public, we do not now have in America.

                  Obama and strong Democratic majorities in 2012!

                  by TRPChicago on Fri Jun 29, 2012 at 01:32:41 PM PDT

                  [ Parent ]

                  •  You are now arguing the merits of a position (1+ / 0-)
                    Recommended by:
                    VClib

                    that five members of the Court, including Justice Roberts, rejected. Four members of the Court accepted that argument, but, as Justice Brennan used to say, the only number that matters at the Supreme Court is 5.  

                    I'll direct you to some of Justice Roberts' thoughts on that, as he can articulate his argument better than I can.  

                    People, for reasons of their own, often fail to do things that would be good for them or good for society.  Those  failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act. That is not the country the Framers of our Constitution envisioned.  James Madison explained that the Commerce Clause was “an addition which few oppose and from which no apprehensions are entertained.” The Federalist No. 45, at 293. While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have “always recognized that the power to regulate commerce, though broad indeed, has limits.”  Maryland v. Wirtz, 392 U. S. 183, 196 (1968).  The Government’s theory would erode those limits, permitting  Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”  The Federalist No. 48, at 309 (J. Madison).  Congress already enjoys vast power to regulate much of what we do.  Accepting  the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.6

                    To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers.  Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 673 (1980) (Rehnquist, J., concurring in judgment). As we have explained, “the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.”  South Carolina v. United States, 199 U. S. 437, 449 (1905).  The Framers gave Congress the power to regulate  commerce, not to  compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.

                    The Government sees things differently.  It argues that
                    because sickness and injury are unpredictable but unavoidable, “the uninsured as a class are active in the market for health care, which they regularly seek and obtain.” Brief for United States 50.  The individual mandate “merely regulates how individuals finance and pay for that voidable, “the uninsured as a class are active in the market for health care, which they regularly seek and obtain.” Brief for United States 50.  The individual mandate “merely regulates how individuals finance and pay for that active participation—requiring that they do so through insurance, rather than through attempted self-insurance with the back-stop of shifting costs to others.”  Ibid.  The Government repeats the phrase “active in the market for health care” throughout its brief, see id., at 7, 18,  34, 50, but that concept has no constitutional significance. An individual who bought a car two years ago and may buy another in the future is not “active in the car market” in any pertinent sense. The phrase “active in the market” cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to “regulate the uninsured as a class.”  Id., at 42. Our precedents recognize Congress’s power to regulate “class[es] of activities,” Gonzales v.  Raich, 545 U. S. 1, 17 (2005) (emphasis added), not classes of  individuals, apart from any activity in which they are engaged, see, e.g., Perez, 402 U. S., at 153 (“Petitioner is clearly a member of the class which engages in ‘extortionate credit transactions’ . . .” (emphasis deleted)).

                    The individual mandate’s regulation of the uninsured as
                    a class is, in fact, particularly divorced from any link to
                    existing commercial activity. The mandate primarily
                    affects healthy, often young adults who are less likely to
                    need significant health care and have other priorities for
                    spending their money.  It is precisely because these individuals, as an actuarial class, incur relatively low health care costs that the mandate helps counter the effect of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect.  See 42 U. S. C. §18091(2)(I) (recognizing that the mandate would “broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums”). If the individual mandate is targeted at a  class, it is a class whose commercial inactivity rather than activity is its defining feature.

                    •  Yes, I am so arguing. (0+ / 0-)

                      Because I think Robert's reasoning is specious. And I don't lightly say that.

                      As against the clearest evidence that health care and insurance for it is part and parcel of interstate commerce and therefore can be regulated by Congress, the counter is that it shouldn't be. "Shouldn't be" is a policy argument, about which there is reasonable disagreement between the major parties, as there is on several other key issues of policy and governance.

                      But I submit that "should/should not" is not a constitutional argument. Today's Republicans - a curious amalgam of conservatives, ultra-conservatives, libertarians and quiescent moderates - confuse constitutionality with policy.
                      There's no question: Congress's power has limits. And today's right wing finds limits to governance everywhere. That crabbed approach to government is their core and their universe. (And to be fair, they ignore it whenever they want something substantive from government.)

                      How crabbed it is is clear from a lot of Roberts' rationale, but take just this ringing declaration from your quote: "An individual who bought a car two years ago and may buy another in the future is not 'active in the car market' in any pertinent sense. " Huh? So therefore, a legislature can't set any standards for what? New cars? Accessories? Insurance to drive? Periodic tests of competence? Advertising about cars?

                      What Roberts really doesn't like is the concept of insurance risk being part of a law. That is a policy argument, made pretty compellingly about health care markets and insurance by insurance companies, conservative think tanks and a governor of a big and sophisticated state.

                      Yes, I am arguing about the merits of a position that conservative members of the court made. Yes, there are five of them on this issue. But just as five justices might not convince conservatives of the rightness of regarding ACA's constitutionality as resting on a tax with penalties, four of them and many of us regard all that stuff about limits of Commerce Clause power as overstated and retrogressive nonsense, a bridge crossed long ago.

                      Obama and strong Democratic majorities in 2012!

                      by TRPChicago on Fri Jun 29, 2012 at 04:18:01 PM PDT

                      [ Parent ]

        •  Exactly. (0+ / 0-)

          You don't need to firebomb Dresden to prove that you can fly the plane.

          by SpamNunn on Fri Jun 29, 2012 at 10:51:06 AM PDT

          [ Parent ]

    •  So many possible responses to Spam ... (2+ / 0-)
      Recommended by:
      Armando, shaharazade

      (1) All majorities are temporary. There has never been in the history of the United States a "permanent majority."

      (2) The Commerce Clause is sweeping and Necessary and Proper gives it legs. Now as for your "not as expansive as you think they are" - that you're gonna have to explain. Of course it's not a carte blanche to enact anything. That's one reason why the brocoli example is just silly. A disproportionate number of legal scholars queried when SCOTUS first agreed to hear the case (as I recall, 19 of 21, but I could be off on the number) said they believed ACA was well within existing SCOTUS jurisprudence since the 1930's.

      (3) No one has ever argued against the idea that "Our Constitution set limits on what the Federal Government can do ...". Not the farthest out liberal I've read has made that argument. That's a drum the conservatives like to bang ... until they want relief from the Federal government that depends on Congress's powers. Then, they get amnesia and start to babble even more.

      "Ask FDR" what, exactly?

      As for your approach to C.J. Roberts, let me point out that he could have stayed with the four "dissenters" - that would, count with me here, made five! Which is a majority of the court, isn't it? - and stopped at their cramped reading of the Commerce Clause. Since the administration didn't argue it was a tax, all C.J. Roberts would have had to do was acknowledge that, agree in passing or just ignore it ... and leave for the summer.

      He didn't turn anything over to the electorate, Spam, 'cause we were going to vote on November 6th even without his invitation. See you at the polls, unless you've managed to disenfranchise even more of us.

      Obama and strong Democratic majorities in 2012!

      by TRPChicago on Fri Jun 29, 2012 at 11:02:57 AM PDT

      [ Parent ]

  •  I wouldn't make so much of this opinion as (7+ / 0-)

    the basis for the conservative jurists' attack on Commerce Clause jurisprudence.  This has been their plan all along; the only thing that changed is that Roberts showed his cards.  The same case that might eventually move us back to the Lochner days could be brought with or without this opinion -- which again is dicta -- on the books; it would just (technically) be more of a surprise when it won.  The Commerce Clause sections of the opinion change nothing except -- and this is to our benefit -- giving people like Armando (and me) a more concrete target to fire against.  If they limit the changes to "you can't drag people into a market and then regulate them under Commerce + N&P," that's (barely) tolerable.  If not, not.

    Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

    "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

    by Seneca Doane on Fri Jun 29, 2012 at 10:32:52 AM PDT

    •  Question for progressives? (0+ / 0-)

      What exactly do you believe that the Federal government is not allowed to do?

      Can it pass literally any law it wants? Are there any laws that state governments can pass that the Feds would be prohibited from passing?

      I am genuinely interested in people's opinions on this. Is it as simple as 'well, everything affects interstate commerce so .gov can do whatever it wants?' What limiting principle exists for the Feds?

      The answers to questions such as this are far more interesting to me (someone who believes in limited .gov as did the founders) than particular cases.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Fri Jun 29, 2012 at 10:42:23 AM PDT

      [ Parent ]

      •  Justice Ginsburg answers: (5+ / 0-)
        Recommended by:
        Hugin, lcj98, Armando, shaharazade, Danali
        Other provisions of the Constitution also check congressional overreaching. A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, inter­ fered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.

        Supplementing these legal restraints is a formidable check on congressional power: the democratic process. See Raich, 545 U. S., at 33; Wickard, 317 U. S., at 120 (repeat­ ing Chief Justice Marshall’s “warning that effective re­ straints on [the commerce power’s] exercise must proceed from political rather than judicial processes” (citing Gibbons v. Ogden, 9 Wheat. 1, 197 (1824)). As the controversy surrounding the passage of the Affordable Care Act at­ tests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments have rarely done so. See Hall, Commerce Clause Challenges to Health Care Reform, 159 U. Pa. L. Rev. 1825, 1838 (2011).

        When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetar­ ian state as a credible reason to deny Congress the author­ ity ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”).

        Ok, so I read the polls.

        by andgarden on Fri Jun 29, 2012 at 10:51:01 AM PDT

        [ Parent ]

        •  Ironnically, I can see Catholic hospitals and such (1+ / 0-)
          Recommended by:
          VClib

          (who don't want to have to buy contraceptive coverage) relying on this from Justice Ginsburg:

          A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause
          The question is, when does "a mandate to purchase a product . . . interfer[] with the free exercise of religion"?  (Notice she said "purchase" not "use".)

          The lawyer in me sees this quote being prominently featured by those groups when they challenge the mandate that they have to buy contraceptive coverage.  

          That's why every time you write one opinion, you open the door to three more disputes.  

        •  You didn't answer the second question (0+ / 0-)

          which was "Are there any laws that state governments can pass that the Feds would be prohibited from passing?"

          I presume that you agree with the statement he suggests for you, i.e., that it is "as simple as 'well, everything affects interstate commerce so .gov [sic] can do whatever it wants'"  Own up to it, if so.

          Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

          "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

          by Seneca Doane on Sat Jun 30, 2012 at 08:33:39 PM PDT

          [ Parent ]

          •  I haven't considered the question (0+ / 0-)

            in a comprehensive manner, but if that's where the Wickard analysis leads, then so be it. Congress has all of the powers it needs to solve national problems--wherever they manifest themselves (except possibly regarding alcohol regulation).

            Ok, so I read the polls.

            by andgarden on Sat Jun 30, 2012 at 08:52:17 PM PDT

            [ Parent ]

            •  Talk about a Constitution-in-exile! (0+ / 0-)

              Here's the problem: I think that reasonable people can disagree about whether, under current regnant law, the federal government has no limitations on its power -- and because we are right on the merits of the issues I want those people to agree with us whether or not they agree with us about something about which reasonable people can disagree.

              Winning this decision was more important to me than winning the entire battle over the scope of the Commerce Clause as augmented by the Necessary & Proper Clause -- a battle that, by the way, we apparently would have lost, and in a way that would have left people believing that -- if they agreed with me that this was a case of first impression (in a narrow sense) would not have left the conservative Court majority looking craven.

              Telling people that the Constitutional question was a gimme about which no one reasonable can disagree was wrong -- not mere ex post, but ex ante.  We dodged a bullet due to Roberts's good graces (however politically calculated they were); it should never have been allowed to come so close to disaster.

              Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

              by Seneca Doane on Sat Jun 30, 2012 at 11:39:03 PM PDT

              [ Parent ]

              •  Oh please (0+ / 0-)

                Ginsburg has Roberts dead to rights on this:

                Lacking case law support for his holding, THE CHIEF JUSTICE nevertheless declares the minimum coverage provision not “proper” because it is less “narrow in scope” than other laws this Court has upheld under the Neces­sary and Proper Clause. Ante, at 29 (citing United States v. Comstock, 560 U. S. _ (2010); Sabri v. United States, 541 U. S. 600 (2004); Jinks v. Richland County, 538 U. S. 456 (2003)). THE CHIEF JUSTICE’s reliance on cases in which this Court has affirmed Congress’ “broad authority to enact federal legislation” under the Necessary and Proper Clause, Comstock, 560 U. S., at _ (slip op., at 5), is underwhelming.

                Nor does THE CHIEF JUSTICE pause to explain why the power to direct either the purchase of health insurance or, alternatively, the payment of a penalty collectible as a tax is more far-reaching than other implied powers this Court has found meet under the Necessary and Proper Clause. These powers include the power to enact criminal laws, see, e.g., United States v. Fox, 95 U. S. 670, 672 (1878); the power to imprison, including civil imprisonment, see, e.g., Comstock, 560 U. S., at _ (slip op., at 1); and the power to create a national bank, see McCulloch, 4 Wheat., at 425. See also Jinks, 538 U. S., at 463 (affirming Congress’ power to alter the way a state law is applied in state court, where the alteration “promotes fair and efficient operation of the federal courts”).

                There is no logic that could possibly explain how Roberts switched his position from U.S. v. Comstock, and Roberts does not even try.

                Ok, so I read the polls.

                by andgarden on Sun Jul 01, 2012 at 07:00:26 AM PDT

                [ Parent ]

                •  "No logic ... could possibly explain" (0+ / 0-)

                  There is the whole "activity vs. inactivity" distinction and its status as a case of first impression.  I know that you and Armando don't like and don't respect the analysis, but to claim that it couldn't possibly explain the distinction from Comstock is simply weird.  Liberal legal scholars have been blinkered on this issue, dismissing it with inapplicable precedent, and thank God you didn't ruin the result.

                  As for "in exile," you're pretending like Lopez and Morrison don't even exist.  Would either have been amenable to the Commerce + N&P analysis?  Yet they turned out the wrong way.  Stop being stunned by it; it happened.  Stop being surprised that a conservative Court wasn't just willing to overturn those decisions because you want the return of untrammeled federal legislative power.

                  Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

                  by Seneca Doane on Sun Jul 01, 2012 at 11:41:46 AM PDT

                  [ Parent ]

  •  Nicole Belle at Crooks and Liars... (4+ / 0-)
    Recommended by:
    stagemom, Paper Cup, Armando, shaharazade

    ... pieces together excerpts from Ezra Klein's WashPo article to make the same point as Armando....

    Roberts opinion is potentially very dangerous.

    http://crooksandliars.com/...

    No snowflake in an avalanche ever feels responsible.

    by Magster on Fri Jun 29, 2012 at 10:37:15 AM PDT

  •  I need some information. (3+ / 0-)
    Recommended by:
    Magster, kitebro, Paper Cup

    Seriously I have had too many facebook friends saying 'Well that's it, at 50 no one will be eligible for healthcare! Thanks OBAMA! Fucker.'

    What the hell are they talking about?  Where are they getting that crap? Seriously?  I mean these people will benefit from ACA and they are already believing they are dead at age 50, what can I tell them and point to them in the law that says otherwise?  I mean this little 'factoid' they are latching onto I can't find any mention of in the law, or reputible site.  All the right wingers are packing down hard on this. And the fact its 'a new tax!' Seriously its more a penality than a tax if you have no health care.  

    And from my understanding if you are on Medicare you are technically covered by health care so not 'punished' by said tax.

    •  That's a new one on me (3+ / 0-)
      Recommended by:
      TM, The BigotBasher, shaharazade

      There's been a lot aimed at Medicare recipients telling them they'd lose all sorts of things, but I haven't seen that particular one circulating.

      No, there's not truth to it. None. In fact, they won't be gouged in their private insurance because they're getting older. Good luck trying to convince them of that. There's nothing even close to that idea in the law.

      But if you can figure out where that one is coming from, let me know.

      "There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning." —Warren Buffett

      by Joan McCarter on Fri Jun 29, 2012 at 10:47:50 AM PDT

      [ Parent ]

    •  Doesn't the ACA expire in 10 years? (0+ / 0-)

      It was passed by reconciliation, like the Bush Tax Cuts, wasn't it?  And things passed by reconciliation expire on their own terms after 10 years, I think.  

      Maybe they are talking about what happens then?  

      •  According to Wikipedia (2+ / 0-)
        Recommended by:
        Armando, TM

        reconciliations limits to 10 years are:

        The Byrd Rule (as described below) was adopted in 1985 and amended in 1990. Its main effect has been to prohibit the use of reconciliation for provisions that would increase the deficit beyond 10 years after the reconciliation measure.
        The bill can last longer as long as it doesn't increase the deficit after 10 years.  Bush's tax cuts were specifically set to expire after 10 years to avoid violating this rule.  The ACA was designed to not have any affect on deficits by that time.

        Occupy the voting Booth!

        by anonevent on Fri Jun 29, 2012 at 12:07:22 PM PDT

        [ Parent ]

      •  I doubt that is the case (0+ / 0-)

        The individual that started the comment thread on Facebook is in his early 20s.  Believe they are believing a death panel lie that just recently started up.  Which does not make sense at all - coverage stops at 50? Nothing at all in the law I can see.  And those that are hurumphinv about the tax are under the impression that if they pay for health care they are paying taxes for those that don't.  It's the wing right lies being reframed in realtime.

      •  Not exactly. First of all, only some (1+ / 0-)
        Recommended by:
        wsexson

        parts of ACA were passed using reconciliation.  And, the 10-year limit applies only to those provisions which increase the deficit.  As an example of a provision of a reconciliation bill that has survived longer than 10 years - COBRA, which, as I recall, stands for Consolidated Omnibus Budget Reconciliation Act of 1986.  It has been around now for 25 years.

        Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

        by Its the Supreme Court Stupid on Fri Jun 29, 2012 at 12:26:20 PM PDT

        [ Parent ]

  •  I don't know how to say this politely (1+ / 0-)
    Recommended by:
    Monitor78

    but wouldn't it be better for the country's future if Justice Ginsburg were to retire now?   If Obama is reelected, then it'd be great if she could stay on for years.  But if he isn't, I'm very worried.    She is 80 years old and has had cancer twice.

    •  You assume that President Obama (5+ / 0-)
      Recommended by:
      jalenth, TM, The BigotBasher, wsexson, VClib

      could get a liberal confirmed prior to the election.  CJ Earl Warren tried to do that very thing -- resign so that LBJ could appoint his successor.  What happened is that LBJ's nominee, Abe Fortas, was blocked (he had serious ethical issues, but that's another story) and  the nomination carried over until after the 1968 election, allowing Nixon to nominate Warren Burger.  

      If Republicans believe they have a shot at winning the Presidency in November, they have no reason to allow a liberal nominee to be confirmed between now and then.  

      •  I'm not sure (0+ / 0-)

        She could follow O'connor and say that she will resign when her successor has been appointed, and then if Romney wins change her mind.    Several GOP senators (such as Graham) have said that they would not filibuster a qualified nominee.   Are there 7 such Senators?  I'm not sure....

        •  Nope, once you resign, you resign (1+ / 0-)
          Recommended by:
          VClib

          you can say it will be effective when my successor is confirmed -- I think that's what Warren did.  But he didn't "change his mind" once Fortas went down in flames and it became clear that Nixon would appoint his successor.  I'm sure he would have if he could.  Instead, since he had given notice, effective on confirmation of a successor, he was committed to that.

          Once you give the President notice, you can't change your mind because you don't like who's going to succeed you.  

  •  Absolutely and Right On! (0+ / 0-)

    Obama/Biden 2012.

    "The scientific nature of the ordinary man is to go on out and do the best you can." John Prine

    by high uintas on Fri Jun 29, 2012 at 10:41:08 AM PDT

  •  The next round of polling... (0+ / 0-)

    ... should be very illuminating as to how dangerous yesterday was politically.

    Didn't Obama push for this decision to come out before the election when they could have delayed? High stakes poker....

    No snowflake in an avalanche ever feels responsible.

    by Magster on Fri Jun 29, 2012 at 10:41:13 AM PDT

  •  On this issue, I am in no way concerned (0+ / 0-)

    about our President's re-election, as long as the Senate has the filibuster rule in place.  I don't see any scenario where any wing, of any party, will take control.  Those days are pretty much gone.

    There is no hell on earth appropriate enough for those who would promote the killing of another person, in the name of a god.

    by HarryParatestis on Fri Jun 29, 2012 at 10:42:48 AM PDT

    •  Reconciliation circumvents the filibuster. (0+ / 0-)

      That's the point of it.  If Obama loses and the GOP has 51+ Senators, they can use Reconciliation to effectively kill the ACA, since it is now considered a tax.  

      So yes, you need to be MAJORLY concerned about both Obama's re-election and holding the Senate.

    •  The Filibuster dies (0+ / 0-)

      quickly the second the Republicans get a bare majority in the Senate.  

      It's death will be the first thing on their agenda (it has to be, that's when they set & can change the rules, without a filibuster).

      So be concerned.

      ... the watchword of true patriotism: "Our country - when right to be kept right; when wrong to be put right." - Carl Schurz; Oct. 17, 1899

      by NevDem on Fri Jun 29, 2012 at 11:34:06 AM PDT

      [ Parent ]

  •  PS Armando I told you so (1+ / 0-)
    Recommended by:
    Paper Cup

    Individual mandate not constitutional under the Commerce Clause

    "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

    by eXtina on Fri Jun 29, 2012 at 10:49:02 AM PDT

    •  correct simply because Roberts said so. (1+ / 0-)
      Recommended by:
      eXtina

      Had he said, it was, then it would have been.

      I think that Justice Ginsburg had the better of the argument and that Chief Justice Roberts shoud have ruled that it was constitutional under the Commerce Clause.

      It is what it is.

      But should he have ruled that way, well that is another question. And I think that he should have ruled that it was constitutional under the Commerce Clause.

  •  I have to agree (1+ / 0-)
    Recommended by:
    Vote4Obamain2012

    When a judge shows himself/herself to be inconsistent in their rulings, it can only mean one thing.  They are a hack, with an agenda.

    A scotus hack can be very dangerous, and we have at least 3.

    Bad is never good until worse happens

    by dark daze on Fri Jun 29, 2012 at 10:49:55 AM PDT

  •  I don't see Scalia retiring with Obama sitting (1+ / 0-)
    Recommended by:
    shaharazade

    in the Oval Office.  I think he'd rather DIE than do that.

  •  BUT...BUT (0+ / 0-)

    President Obama has personally let me down on and I cannot vote for him!!!

    //end snark.

    Sarcasm: It beats killing people...

    by Dreggas on Fri Jun 29, 2012 at 11:17:00 AM PDT

  •  Obama win means (1+ / 0-)
    Recommended by:
    FiredUpInCA

    2014 - people start enjoying all the benefits of Obamacare (and yes I like that as its historical name).  Ain't nobody going to start taking away folks' healthcare.

    By the 2016 election, the demographics will be enough in our favor as to effectively end the Hard Rght as a possible national force.

  •  Armando, It doesn't mean Jack S!*# (2+ / 0-)
    Recommended by:
    Paper Cup, fumie

    Unless Obama can get some coat tails on the campaign.  

    For the Republicans it has not been about Obama.  He is a tool for the Republican power grab, a focal point.  I believe we would be going through the same kind of crap right now even if it was Hillary and not Obama in the driver's seat.  

    Unless we also retain control of the Senate (where all of the Republican hatred aggressiveness toward Obama plays out), an Obama victory is nothing, it is post-Pyhrric.  

    We also need to take the House.  Otherwise expect four more years of the same Republican Crap.

    Republicans are using fear of the black guy and his programs to push Joe Average not to vote in his own best self interest, but to make him think that his best interest is to aspire to the greed of success.  It's an illusion, but realize it's also their reality (or at least the right wing's).  

    This and all Dem campaigns need to be about what  people would loose without the Dems.  Paint All Republicans as the party of Bain Vulture Capitalists, the people who destroy your hope of being able to ascend to the greed of success.  

    Destroy their illusion of success with Republicans.  Reinforce their well being, their social security, and level playing field with an opportunity for success with Democrats.

    I've wandered but unless Obama gets coat tails and is able to re-take Congress, his reelection will mean nothing.

    ... the watchword of true patriotism: "Our country - when right to be kept right; when wrong to be put right." - Carl Schurz; Oct. 17, 1899

    by NevDem on Fri Jun 29, 2012 at 11:27:06 AM PDT

  •  It is imperative that we remember (2+ / 0-)
    Recommended by:
    shaharazade, fumie

    Nominations must be approved. If we do not provide the means to do so, it really will not matter who recommends or nominates whom.

    Down ballot, the GOP is on a wild purchase spree. State Houses are their primary focus, and their singular goal. It has overwhelming dimensions of difficulty for the people to have any representation whatsoever, and that is precisely the goal.

    Nurse Kelley says my writing is brilliant and my soul is shiny - who am I to argue?
    Economic
    Left/Right: -7.75
    Social Libertarian/Authoritarian: -4.51

    by Bud Fields on Fri Jun 29, 2012 at 11:48:46 AM PDT

  •  Re-electing President Obama is not sufficient (4+ / 0-)
    Recommended by:
    Armando, shaharazade, wsexson, fumie

    ...to creating a firewall in the Court.   There must be enough Democratic Senators who will act like Democrats elected to allow the confirmation of strong candidates for justices.  Because  you know that the Republican firestorm of obstruction will just be heightened by an Obama re-election victory.

    And Democrats must take back the House and hold it in 2014 in order to avoid another bogus impeachment.  If nothing else, the contempt vote against Holder, is a warning.  Unfortunately, we have to do that by defeating Republicans by other than Blue Dogs and letting the 17 traitors from yesterday fall by the wayside.  That is a steep hill to climb.

    In North Carollina, that means electing Steve Wilkins, Erik Anderson, Elizabeth Motzinger, Tony Foriest, Jennifer Roberts, Patsy Keever, Hayden Rogers, and Charles Malone taking the risk that one or more of them will turn out to be Blue Dogs.  And dumping Larry Kissell and Mike McIntyre.

    50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

    by TarheelDem on Fri Jun 29, 2012 at 11:50:16 AM PDT

  •  "ObamaCare" was initially a republican idea (1+ / 0-)
    Recommended by:
    fumie

    “ObamaCare” was not invented by Obama. Its origin goes back to Republican Richard Nixon, who saw that many people did not have adequate health care and wanted a Republican solution. He asked the extremely conservative Heritage Foundation for a solution and they recommended  making everyone buy insurance from a private company, that is the individual mandate. For decades, this was the Republican response to Democratic attempts to expand Medicare to cover everyone. Only after Obama pushed through NixonCare did the Republicans begin objecting to what was, in reality, THEIR OWN PLAN. The only reason they turned against it is because Obama embraced it.

  •  I'm not rehashing arguments on this (0+ / 0-)

    So please don't take my nonparticipation as non interest.

    I'm just not going to address the same zombie lies over and over again.

  •  From this point forward, I think we should all.... (1+ / 0-)
    Recommended by:
    fumie

    start calling ObamaCare, RomneyCare. Impress upon people the model from which ObamaCare spawned. (IMO)

    Only the weak & defeated are called to account for their crimes.

    by rreabold on Fri Jun 29, 2012 at 12:24:53 PM PDT

  •  That's win/win for Roberts. (0+ / 0-)
    [...]
    Then, in hindsight, Roberts' seemingly compromised opinion won't be very compromised at all. His apparent flip-flop won't be understood as a change of mind. Instead, his opinion may turn out, in hindsight, to be the beginning of an important transformation in constitutional law. What will happen can't be deduced from the four corners of these documents. It will depend on the Supreme Court appointments of the next decade
    That's not a compromise/win for Roberts.  It's a win piled on top of a win.

    Win: Roberts enables Romney/Obama/HeritageFoundationCare.  That's a huge, trillion-dollar win spanning years-and-years for the failed and reviled (if anyone was paying attention) Healthcare Denial Industry (HDI).  

    Sub-win: a cruel, regressive tax foisted upon the very poorest, to pay for those new HDI Las Vegas townhouses.  I can hear Roberts and Obama cackling now over making the deadbeats pay.

    That's rightwing win.  Not compromise. At all.

    Second win: Roberts inserts more rightwing principle into constitutional law.

    Concerns over Supreme Court nominee control is kind of precious though, considering it was 4 librul, Big-Boy Pants(tm) Dem consensus Justices carrying the water for the regressive, corporate Reagan REvolution rearguard action that is AHCA (along with kossack BFF John Roberts).

    Seriously.  Who are we trying to kid?  With Reagan Revolution Dems like Obama (and apologists here at dkos) Republicans are obsolete.

    Please don't feed the security state.

  •  Enjoyed this (0+ / 0-)

    dairy very much. I felt this decision was dicey even though it was good news for both the Democrat's in an election year and maintained the life line to the 30 million who needed it. Thanks to all you lawyers here for the lively debate about how this decision affects the ongoing assault's on both how the Constitution is interpreted  and used to affect the conservative agenda. I'm glad in these twisty times I can read dkos lawyers who while I might not agree with at least serve as good interpreter's of legalese and it's subtext.

    Ambose Bierce The Devils Dictionary  

    Lawyer  (n.) One skilled in circumvention of the law.

    Conservative    (n.) A statesman who is enamored of existing evils, as distinguished from the Liberal, who wishes to replace them with others.

    This is a very good reason to vote for Obama and any other Democrat running for Federal Office. The clown show R pols are not as scary as the ones like Robert's or Scalia. The puppet masters who will become entrenched will make it impossible to replace any existing evils with others. The mechanism our constitution will be so altered and interpreted so narrowly that liberals and even so called moderates will not have a dissent to stand on.            

         

  •  Better if Bryer and Ginzberg retire so Obama (0+ / 0-)

    can appoint younger replacements.  It would be a disaster if Ds were to lose the WH in 2016 and one of  the progressive justices were to then die in office to be replaced by a right winger.

    Romney: Wrong on GM. Wrong on bin Laden. Wrong on fiscal austerity and wrong for America. I voted for change. Where is my vote?

    by SGWM on Fri Jun 29, 2012 at 01:04:57 PM PDT

  •  I was going to vote for any Progressive on ballot. (0+ / 0-)

    I was going to vote for any decent progressive third party alternative to Obama.  Not anymore.  While my view that Obama is right of center, and that Biden is nothing but blue dog in liberal clothes, the goper alternative(s) are truly reprehensible and maybe from demon seed.

    Chomsky said it is no sin voting the lesser of two evils.  

    After reading Scalia, et al, on their dissent, it is obvious that rabid right wing radicalism has infected the court to make it the most dangerous institution in America.  The radical right judges have now taken upon themselves to proactively redefine America into their version of a neofeudal banana republic.  They tried in their dissent to basically write the rules for healthcare reform in their vision of social order.  I think they truly see themselves above the law and entitled to rule the country by any decree they so desire.

    If Obama were to win and the Dems retake the House and keep the Senate, that any and all laws would be overturned, going   so far as to declare social security unconstitutional.

    Yes, Obama will continue to be a militarist, yes Obama will go after Social Security, yes he will undermine civili liberties, yes he favor Wall Street, AND  yes, he may get to appoint any new Supreme Court justices.  And on that he has not done a bad job in keeping a liberal base.

    I believe that Roberts is cunning and smart and more importantly sane, and he realized how radicalized his buddies have become going beyond restraint and even basic rationality and sanity.  This is why he voted with the liberals.  I don't think he for second believes what he wrote--he did it to counter balance right wing insantiy.  I would not be surprised to see Roberts siding with the liberal wing just with the thought of keeping the country from falling into a right wing anarchist dystopia.

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