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U.S. Supreme Court Chief Justice John Roberts attends the National Catholic Prayer Breakfast in Washington April 18, 2008.  REUTERS/Jonathan Ernst   (UNITED STATES)
The battle begins. (Jonathan Ernst/Reuters)
John Roberts is a very clever man. Of course, he is incredibly gifted intellectually (easily the most intelligent of the conservative justices). But that does not always translate into cleverness. But the chief justice is different from his fellow conservative travelers on the Court. He knows that open proclamations of fealty to the Constitution in Exile and to a return to the Lochner Era will never be accepted in one fell swoop. He is a radical incrementalist, using the language of judicial minimalism to build, precedent by precedent, the structure to achieve, over time, what incendiary radical extreme conservatives want to achieve: the undoing of the New Deal.

In the ACA decision (PDF), the chief justice struck two blows against progressive values: (1) he gained five votes for a theory of limitation of federal power under the Commerce Clause and the Necessary and Proper Clause of the Constitution; and (2) he gained seven votes (two of them quite shocking, from Justices Breyer and Kagan) for the novel proposition that states have a constitutional right to federal funding from existing programs without condition (or "coercion" as the Court termed it) of the federal government.

In my post A dark cloud on this sunny day: Roberts Court embraces Constitution in Exile, I argued that the rule regarding the Necessary and Proper power expressed by the chief justice and agreed to by the other four conservative justices presented a radical change to our understanding of the Necessary and Proper power. The chief justice presents this change, as he so often does, as no change at all. He presents his de facto overturning of precedent (including the overturn of McCulloch v. Maryland, Chief Justice John Marshall's seminal opinion regarding the Necessary and Proper power), as fidelity to precedent. It is not.

Compare Chief Justice Roberts' formulation with that of Chief Justice Marshall. Roberts wrote:

[T]he individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement of those already in federal custody when they could not be safely released, Comstock, supra, at _ (slip op., at 1–2); criminalizing bribes involving organizations receiving federal funds, Sabri v. United States, 541 U. S. 600, 602, 605 (2004); and tolling state statutes of limitations while cases are pending in federal court, Jinks v. Richland County, 538 U. S. 456, 459, 462 (2003). The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power. [Emphasis supplied.]
Of course, the chief justice's statement that "the individual mandate vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power" is blatantly false. The Affordable Care Act is not a bootstrap from the individual mandate. In fact, the opposite is true: The individual mandate was enacted solely because in Congress' judgment, the Affordable Care Act could only be effective if a mechanism such as the individual mandate was included in it. In other words, it was a classic example of congressional use of its Necessary and Proper power. As the chief justice puts it, "exercise[] of authority derivative of, and in service to, a granted power." Regulation of the health care and health insurance market is undoubtedly valid under the Commerce Clause. The individual mandate is undoubtedly a valid exercise of the Necessary and Proper power to make effective the Affordable Care Act.

In McCulloch, Chief Justice Marshall stated:

If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.
Chief Justice Roberts' ACA ruling on the Necessary and Proper power cannot be harmonized with McCulloch. But he did not overrule McCulloch. Indeed, the chief justice claims fealty to McCulloch. As I say, Chief Justice Roberts is a clever man.

(Continue reading below the fold)

We have seen this before from the chief justice. In Parents Involved, the chief justice claimed his decision to strike down desegregation plans in Seattle and Louisville were mandated by Brown v. Board of Education. The chief justice brazenly wrote:

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
No kidding. In dissent, Justice Stevens retorted:
There is a cruel irony in THE CHIEF JUSTICE’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” Ante, at 40. This sentence reminds me of Anatole France’s  observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.
Yes, Chief Justice Roberts is a very clever man. And he is, to use the common parlance, playing "the long game." Today, the chief justice is hailed as a man of moderation, a pragmatic man, not the ideologue of the likes of Justices Thomas and Scalia. And this is what makes him the most dangerous threat to our progressive values. In the coming terms, when the chief justice shepherds the overturning of affirmative action and declares the Voting Rights Act unconstitutional, we will be reminded that the chief justice is a moderate, pragmatic minimalist by the usual suspects.

And we will look back at the cherished progressive values now under threat and wonder what happened. Unless we fight. We must also consider how the chief justice threatens the ability of the Congress to enact progressive solutions to our current and future problems.

In her dissent in the ACA case, Justice Ginsburg wrote:

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
Why indeed? Because the conservative project is to undo the New Deal. It is to impose severe restrictions on the ability of the national government to implement progressive solutions to our national problems. Climate change? The federal government may not be able to do anything about that. Income inequality? Could be a local problem. The progressive project understands how important it is that the national government can act to address our problems. The conservative project is hell bent on defeating this vision. Chief Justice Roberts is playing the long game to undermine the progressive project. To undermine the vision President Franklin Delano Roosevelt outlined in his 1937 Constitution Day speech:
In these days when the undemocratic concentration of economic power has brought with it a corresponding concentration of legal ability against the democratic purposes of the Constitution, only the utmost vigilance and the utmost willingness to fight for our Constitutional heritage will guarantee its continuance.
Furthermore, a democracy cannot help counting, and seeking ways and means to avoid for the future, the terrible cost at which its ultimate triumphs have had to be achieved. […] We know that it takes time to adjust government to the needs of society and that deliberation upon the remedy is indispensable to wise reform. We also know that government must keep pace with changes in circumstances substantially as the changes occur. […]

These unwarranted delays in the accommodation of the government of today to the needs of today have not been due, I cannot too often repeat, to any language that the Fathers used in the Constitution to bind their successors. […]

I know and every lawyer knows that you will find nothing in our Constitution which forbids the national government to do any of these things. They have been forbidden or jeopardized, not because of anything the Constitution says but because men with axes to grind have chosen to put their lawyers' own notions of policy upon the silence or the vagueness of the Constitution. [Emphasis supplied.]

Chief Justice Roberts is their man for our age. He is the man for those with "axes to grind" against progressive values.

How can he be defeated? By denying him the votes necessary on the Supreme Court to enact his pernicious project. This is done by reelecting President Barack Obama and electing future Democratic presidents. There are no other options.

This is the most important progressive project of this election and future presidential elections.

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Comment Preferences

  •  I wlll continute talking about this (112+ / 0-)

    I know everyone wants to celebrate the ACA decision.I do too.

    But I have to read what is in the opinion as well.

    See also Pam Karlan today in the NYTimes.

    •  Good point you are making here. (14+ / 0-)

      We should not allow ourselves to be misled by the howling of the Limbaughs, the Becks, the DeMints, etc. into thinking Roberts is now one of us.  Yes, those folks are deranged and schadenfreude can be fun, but they will fall in line soon enough, just as they have for Romney.

      Robertsism still needs to be nipped in the bud and the only way is to have a president who will appoint justices not taken in by it.

      sTiVo's rule: Just because YOU "wouldn't put it past 'em" doesn't prove that THEY did it.

      by stivo on Sun Jul 01, 2012 at 08:50:55 AM PDT

      [ Parent ]

    •  Overthinking It, I'm Afraid (18+ / 0-)

      I understand that you're one of these liberals who often can't be happy about anything (and I certainly respect your analysis), but you are drastically overanalyzing the impact of the decision.  

      Your prediction, IIRC, was that everything would be struck down.  Instead of admitting that you were completely wrong, now you seem to want to find a dark lining in the silver cloud.  

      Roberts is NOT the most intellectually gifted of the conservative justices - - not even close.  I'm stunned that you could make that statement.  Scalia, although he is clearly losing his faculties, is smarter and so are Alito and Kennedy.  Roberts is a Washington lobbyist with virtually no experience as a judge prior to his elevation.  He is not the master strategist that you perceive here.  No offense, but it's a laughable assertion.  

      Roberts did what he did because he was terrified of his legacy being linked with a decision that would actually kill people.  The PPACA decision doesn't overturn McCulloch (are you serious??), it doesn't much weaken the commerce clause, which gets interpreted on a case-by-case basis anyway as you well know, and by characterizing the mandate as a valid exercise of the taxing power, he did Obama and the entire country a huge favor.  

      This is a one-of-a-kind decision.  It's not going to set up some new, Constitution-destroying framework, Roberts is no tweltfh-dimensional mastermind, and if Obama wins a second term, he may very well get to replace Scalia and Kennedy, as well as Ginsburg, meaning that Roberts won't much matter.  

      Relax.  The decision was a good thing.  Sometimes a cigar is just a cigar.      

      •  Good to hear both sides. (12+ / 0-)

        I, as an "average Joe", feel like you're both right.

        Here's where you converge:

        if Obama wins a second term, he may very well get to replace Scalia and Kennedy, as well as Ginsburg, meaning that Roberts won't much matter.
        Hopefully, he'll get to replace Thomas, Kennedy, and Scalia.

        Here, I'm not so sure.

        by characterizing the mandate as a valid exercise of the taxing power, he did Obama and the entire country a huge favor.
        I'm not so sure he didn't do Romney and the gop a favor by giving them the "tax" talking point.

        He could have used more exact language to describe the mandate and called it a "penalty", more comparable to a speeding ticket. He could have cited the harm done to non-free-riders and to the system by those who do not have ins.

        I think ultimately that the mandate puts more pressure on the system, esp. at the state exchange level, to offer a "bare-bones", non-Wall Street insurance, and that sooner or later the issue becomes moot, with either non-Wall Street "coop" type providers or Medicare for all, or a combination of the two taking over.

        You can't make this stuff up.

        by David54 on Sun Jul 01, 2012 at 09:30:12 AM PDT

        [ Parent ]

      •  Even if you're wrong (4+ / 0-)
        Recommended by:
        ozsea1, TKO333, environmentalist, Matt Z

        it's refreshing to hear from someone who doesn't want us to panic. As a legal illiterate, I'm sure there's something horrible in the decision, but maybe it's just incoherence from Roberts having to make an argument he doesn't believe in. Armando's right about what he did with Brown, though.

        What did you do in the class war, Daddy?

        by Yastreblyansky on Sun Jul 01, 2012 at 09:44:47 AM PDT

        [ Parent ]

      •  Unless they die on the bench (6+ / 0-)

        I really doubt Obama gets to replace any of the 5 conservative Justices.

        Do you really think any of them would resign while Obama was still in office knowing that the majority would swing 5-4 the other way?

        Even if one of the conservatives dies or is incapacitated and needs to be replaced, I'm not sure that Obama would be able to get a replacement seated with the current set of Republican Senators (and they are only getting more and more bat-shit crazy).

        Hell even replacing one of the liberal justices is going to be a challenge for Obama with the hyper-partisan Republican Senate.

        It won't be easy for Obama either way, but is still way better than the alternative as we know there are still enough moderate and accommodating Democratic Senators to allow Republicans to push through their Supreme Court nominees.

        •  One can hope, can't one? (5+ / 0-)
          Recommended by:
          judyms9, rbird, ozsea1, JanL, Creosote

          But. unfortunately one of our justices (Ginsberg) is more apt to die than one of theirs.  All the more reason not to have Romney in the White House.

          sTiVo's rule: Just because YOU "wouldn't put it past 'em" doesn't prove that THEY did it.

          by stivo on Sun Jul 01, 2012 at 10:06:16 AM PDT

          [ Parent ]

        •  Stranger things have happened. (7+ / 0-)
          Recommended by:
          rbird, Egalitare, ozsea1, Loge, dfe, Matt Z, Nailbanger

          Bill Douglas resigned, permitting Gerald Ford to name his successor.  And Douglas DESPISED Ford, who, as House Minority Leader, led an effort to impeach Douglas in the 60s.

          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 Sun Jul 01, 2012 at 10:07:57 AM PDT

          [ Parent ]

        •  Which is why we have to keep winning elections (7+ / 0-)

          Of course Scalia, Kennedy, et al. are not going to leave the court if they are in good health and a Democrat is in the White House.

          But if we win enough presidential elections, and if we have enough real Democrats in the senate, then things will start to fall our way.

          The GOP got the opportunity to replace two strong liberals on the court, Brennan and Marshall -- but only after the GOP had won 5 out of 6 presidential elections.  (Brennan and Marshall both retired in ill health and were replaced by GHW Bush.)  

          The Dems will have to put together their own run of White House victories to be in position to fill the GOP-controlled seats of Scalia, Kennedy, et al.

          Please help to fight hunger with a donation to Feeding America.

          by MJB on Sun Jul 01, 2012 at 10:13:54 AM PDT

          [ Parent ]

        •  Not So Sure (0+ / 0-)

          I was in attendance at a function with Kennedy about 18-20 months ago.  While he was clearly very healthy, I just got a feeling that he's tired of the Washington game and wants to get back to California, and that dovetails with some "inside" perspectives I've read recently.  Meanwhile, I don't think you can count Scalia out for a major health crisis, NOT that I'm wishing one on him.  I'm not.  

          You're right that replacing any of the Gang of Five will result in Cabbage Patch Boy and Company basically shutting down the Senate until and unless Obama nominates, say, Joe Lieberman or Lanny Davis.  (I'm only half-kidding with those two examples.)  

      •  Get back to us and Armando (6+ / 0-)
        Recommended by:
        va dare, Bailey2001, Supavash, ozsea1, Loge, JanL

        after the court takes up DOMA, the Voting Rights Act and addresses Affirmative Action.  Then we'll know whether Roberts is actually a pragmatist more concerned with his legacy than subverting precedent over the long run.

        Meanwhile we will enjoy this small victory for the PPACA while keeping in mind that the Chief Justice, for whatever reason, felt it necessary to redefine the penalty for non-compliance with the law's mandate to be a "tax" - giving the cudgel to Republicans to use to beat the Democrats over the head as passing "the largest tax increase in history," dishonest as that statement may be.

        "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

        by SueDe on Sun Jul 01, 2012 at 09:53:17 AM PDT

        [ Parent ]

        •  Not My Point (0+ / 0-)

          Roberts is evil.  There's no doubt about it - - all you have to do is look at Citizens United.  I have no doubt whatsoever that we'll have more horrible decisions to come from the current Gang of Five until one of them is FINALLY replaced.  

          In THIS case, however, yes, Roberts was worried about his legacy.  A critical analysis of the opinion doesn't reallly yield many other interpretations - - although as one commenter wisely noted here, guessing what's in his mind is a fruitless exercise.  

          It's just interesting to me that instead of celebrating a clear-cut victory, some of us actually have to parse Roberts' motives, in the process inputing to him a level of judicial acumen and strategic mastery that he simply does not possess, and decide that he did this because he's playing the long game.  

          If Roberts really wanted to be clever/devious/harmful to Democrats and liberals, he would have . . . joined the dissenters and overturned the PPACA entirely.  

          Small victory?  Wow.  There's nothing small about it.  Not even close.  It's a sweeping, crushing, overwhelming Democratic and liberal victory.  

          Roberts didn't redefine anything - - the government's tertiary argument based the Act's constitutionality on the taxing power.  And, as some commenters have remarked upthread, the "Obama raised your taxes" argument just isn't going to play in this circumstance.  It's more of a wet noodle than a cudgel.  

      •  IF it were a "one-of-a-kind decision", John, (3+ / 0-)
        Recommended by:
        va dare, ozsea1, Loge

        ... the Chief Justice would not have needed to side with the four "dissenters" to concoct a majority for a proposition - negating Congress's power to legislate health care reform under the Commerce Clause - that the Court did not need to decide.

        All C.J. Roberts would need to have done is to write the majority opinion upholding ACA as a tax and penalty leave the dissent to its dissent. But Roberts didn't. He went further. Moreover, the tax rationale, an undoubtable power because it is explicitly granted to Congress, is a weak reed as J. Roberts wrote it. How so? Well, he wrote (and got the majority of five for this unnecessary part!) that it was just a little tax and a little penalty. Voila! It looks like the door is now wide open to a thunderous "The power to tax is the power to destroy," from the bright but tempestuous, volcanic and hypocritical intellectual dilettante of the Far Right, Mr. Associate Justice Scalia, and the conservatively silent Mr. Associate Justice Thomas.

        While I'm not quite as worried as Armando (McCullough v. Maryland lives to be cited another day by a Court wise enough to at least acknowledge the last 75 years of jurisprudence), he makes his case well, basing it as a legal scholar should, not as a liberal unhappy-about-everything, but on the language of the Court's opinions and respect for precedent. And that really is the point.

        The "dissenters" "crabbed" view of the Commerce Clause would - like conservatives and libertarians abounding - reverse legislation by Congress since the New Deal. Their view of government is a scorched negation of a lot of law.

        I think those four - oops, five with C.J. Roberts - ignored that they were constitutional judges who were beholden to their forebears as they mounted their pulpit of policy and started to rewrite Chief Justice Marshall's work.

        Obama and strong Democratic majorities in 2012!

        by TRPChicago on Sun Jul 01, 2012 at 09:58:27 AM PDT

        [ Parent ]

        •  Don't Entirely Disagree (0+ / 0-)

          It's clearly a unique decision.  

          However, if you're saying that Roberts didn't need to take a swipe at the Commerce Clause in the opinion, I'm not sure I agree or disagree with you entirely.  While many circuit courts sometimes tend not to treat coextensive/alternative arguments in their opinions if another argument by the same party rules the day, most SCOTUS decisions, particularly those with national import, tend to take on just about every argument advanced by the party with the most to lose - - typically the appellant, but sometimes (as in this case) the Congress, if the constitutionality of a statute is involved.  

          So it doesn't surprise me that Roberts went through the commerce clause analysis and the N&P analysis before reaching the taxing power.  You're right, it wasn't strictly necessary, but it's hardly shocking or unusual, nor is any opportunity for this Gang of Five to swat at the Commerce Clause.  

          It's also possible, as some have speculated, that Roberts changed his mind "mid-opinion," leading the oddities found in the interplay between the dissenters and Ginsburg's opinion, which the dissenters attack and mention about 30 times as often as Roberts' majority opinion.  (The implication of that view is that Ginsburg's opinion was headed to be the lead dissent, and Kennedy's opinion the majority, but something changed with Roberts.)

          Another important point is that Roberts didn't exactly gore the Commerce Clause - - he just said that it couldn't apply in this circumstance, to "inactivity."  That's not going to have a ton of predecential value.  

          Occam's Razor: Obama wins, as do millions of Americans.  Roberts is not a good guy, but for whatever reason, he reached the right result here.  And the decision is not some Machiavellian piece of awe-inspiring strategy.    

      •  I disagree. (5+ / 0-)

        I too find Robert to easily be one of the most intelligent of the group....perhaps even one of the top within all of the justices.  He is deeply ingenious and also very manipulative, both dangerous in the scope of the power he holds but signs never the less of him possessing a brain.

        I also feel that his ruling had zero to do with him "worried" about his legacy.  Roberts has never once shown any concern of any kind in that regard, even in the smallest of measure and I doubt highly he would have chosen this ruling to start.  Here is a law that has never once polled in the net positive to be in favor with the American people.  Certainly when the provisions are explained...the individual components are liked and even greatly liked....but as a whole and with the mandate, the American people simply do not like this law.  I do not agree with that sentiment,  even if I had wished the law to have been single payer,  but it is true that a majority of the public dislike ACA, at least at this time they do.  Perhaps it will change, and I believe it will change but at this moment and at the time of his ruling.....Roberts knew how much the public wanted a strike down.   As a conservative judge, he would have been labeled a hero by millions for doing so, in his own circles....that is.  As it stands now, he is one of the most hated men in America, by his own people. It is simply false that Roberts did this to seal his legacy.  I'm certain that Roberts knows he blew that out of the water when ruling as he did....at least in the way he wished his legacy to be remembered.  I doubt Roberts has ever wanted to be remembered as a swing or liberal in any way Justice. I doubt Roberts has ever wished to be liked or admired by us or Pelosi or Obama.  I doubt he wanted his legacy to be tied with ACA.

        I too feel that Roberts ruled as he did with purpose and probably conservative malice. He ruled as a lover of business and greed and all he holds dear.  He gave conservatives an election year position of "Obama lied and it was a tax".  He did limit, perhaps even greatly, the Commerce Clause and  Necessary and Proper Clause , especially as we Progressives interpret it to be. I think he did so to somewhat close a door on it and to bring about new precedence.  His ruling was not without concern to how to frame it best to benefit conservatives. He wrote it in a very self serving and conservative way.  That is obvious. No one would read his opinion and come to the conclusion that he likes the law.   If Roberts thought he was saving lives, or if he cared that he was saving lives, he wouldn't have said such things. Roberts was intelligent enough to know he had to rule as he did...he knew it was Constitutional but he ruled  in a way to make certain he caused as much damage as possible in the end.

        •  People talk and people talk (2+ / 0-)
          Recommended by:
          Matt Z, v2aggie2

          about why Roberts did what he did, but the fact is nobody but Roberts knows his mind. It's all speculative based on inferences each one draws from their own point of view.

          Roberts may someday write his memoir and explain his motivations, but by then his memory will probably have either faded or been painted over by subsequent events.

          Take the decision for what you can get out of it and move on. Unproductive attempts to analyze Roberts himself are a waste of time. Nobody knows what he will do next.

      •  Sorry, our side can never relax (6+ / 0-)

        The GOP never does.

        Why would you want to sell "relax"?  We're in a dogifght.

        sTiVo's rule: Just because YOU "wouldn't put it past 'em" doesn't prove that THEY did it.

        by stivo on Sun Jul 01, 2012 at 10:07:52 AM PDT

        [ Parent ]

        •  I Just Meant . . . . (0+ / 0-)

           . . . relax about this decision.  There's no need for a smart person like Armando to waste his energies looking this gift horse in the mouth.  To draw out the equine metaphor, it's not a Trojan.  

          As far as continuing the fight against the Tea-infused conservative scrubs, I'm not suggesting an ounce of relaxation.  

      •  Why can't Democrats just celebrate a victory? (3+ / 0-)
        Recommended by:
        Supavash, Matt Z, v2aggie2

        The news shows and editorials are filled with the GOP declaring that the Robert's ruling was a huge victory for them and Democrats wringing their hands over future decisions by the SCOTUS. This ruling is a huge win for Obama and the Democrats. Seeing how they responded to a ruling that basically upheld the ACA, can you imagine with the right would be saying now if the ACA had been overturned??

        •  It's a victory for those who benefit (2+ / 0-)
          Recommended by:
          dfe, JanL

          from the Act.  The fact that some pretty outlandish propositions got 5 votes is a cause for concern.  The holding about Medicaid could do some damage if governors do opt out, not just to the people covered but, a fortiori to the rest of the statute's goals of cost cutting by expanding coverage.

          Difficult, difficult, lemon difficult.

          by Loge on Sun Jul 01, 2012 at 11:36:01 AM PDT

          [ Parent ]

      •  Conservatives are stubborn hangers on (3+ / 0-)
        Recommended by:
        judyms9, ozsea1, Matt Z
        if Obama wins a second term, he may very well get to replace Scalia and Kennedy, as well as Ginsburg, meaning that Roberts won't much matter.  
        The conservative jurists will not step down in a democratic admistration.  Too much fear and hate of a radical shift to the left (which I believe is unfounded) on the part of the judges and the republican party.  Scalia would be a likely candidate due to age, but with his hatred of Obama and liberalism, I could only see him stepping down due to incapacitating illness or sudden death.  

        "Sisters, brothers and the whities, Blacks and the crackers, Police and their backers, They're all political actors"--Curtis Mayfield

        by Cynic in seattle on Sun Jul 01, 2012 at 10:41:54 AM PDT

        [ Parent ]

        •  Forgive the levity, but I doubt Scalia would (3+ / 0-)
          Recommended by:
          714day, Cynic in seattle, Matt Z

          step down even with an incapacitating illness.  He would resist the label incapacitating and invoke Stephen Hawking as an example of how to continue to serve and provide input.  He is unalterably commited to service of conservative causes.

          Romney went to France instead of serving in our military, got rich chop-shopping US businesses and eliminating US jobs, off-shored his money in the Cayman Islands, and now tells us to "Believe in America."

          by judyms9 on Sun Jul 01, 2012 at 10:47:48 AM PDT

          [ Parent ]

      •  I am pleased that you're enjoying your cigar (1+ / 0-)
        Recommended by:
        stivo

        but I must dissent.

        A rethug Senate will repeal the Roberts tax on a simple majority.

        Keep your eyes on the prize.

        Respectfully.

        Both parties are beholden to their corporate sponsors. The Democratic Party deigns to throw us a few bones from the table on which to gnaw and squabble over, but it's just kabuki.

        by ozsea1 on Sun Jul 01, 2012 at 10:51:59 AM PDT

        [ Parent ]

        •  Thanks (1+ / 0-)
          Recommended by:
          ozsea1

          A Rethuglican-controlled Congress and a Rethug president could repeal the law no matter how the Supreme Court upheld it.  I have no idea what point you're trying to make here, with apologies.  

          •  That the rethugs' heads are noisily exploding (0+ / 0-)

            is indeed a wonderful sight to behold, but I take no other satisfaction from this ruling.

            Both parties are beholden to their corporate sponsors. The Democratic Party deigns to throw us a few bones from the table on which to gnaw and squabble over, but it's just kabuki.

            by ozsea1 on Mon Jul 02, 2012 at 08:23:17 AM PDT

            [ Parent ]

    •  My readings include differences. (11+ / 0-)

      For example, I see the ACA "Tax" as the blastula of Single Payer.

      Some time down the road it is more likely than not, that no-hassle paying for your no-hassle health care on the short-form of a 1040ez will become widely preferred to dealing with for profit insurance companies and their idle rich shareholders.

      Fat cats regaling in luxury off profit from Deathcare will be squeezed into the putrid puddle of capitalist history

      That Giant Sucking Sound Is Wall Street Billionaires Drinking Your Blood.

      by olo on Sun Jul 01, 2012 at 09:21:50 AM PDT

      [ Parent ]

      •  I can embrace that vision... (9+ / 0-)

        ...Cheers.

      •  Politics First. Democrats Up & Down The Ballot (8+ / 0-)

        need to win in Nov 2012.

        The growing "Obamatax" meme needs to be totally eviscerated by the Democrats ASAP.

        If it were a tax, SCOTUS could not have decided the case.  Short, simple and leaves the GOTP trying to explain what Roberts' meant.

        •  You say "Obamatax", I say "Roberts Tax" (3+ / 0-)
          Recommended by:
          ozsea1, Matt Z, Creosote

          That Giant Sucking Sound Is Wall Street Billionaires Drinking Your Blood.

          by olo on Sun Jul 01, 2012 at 10:20:00 AM PDT

          [ Parent ]

        •  There's a difference between (3+ / 0-)
          Recommended by:
          majcmb1, Eric Nelson, Matt Z

          A penalty authorized by the taxing clause and a tax, itself.  The understandable problem making sense of this for most people is a function of ad hoc avoidance of the rather obvious commerce clause justification for said penalty.

          Difficult, difficult, lemon difficult.

          by Loge on Sun Jul 01, 2012 at 11:39:25 AM PDT

          [ Parent ]

          •  LetGohmert & Blackburn & Cantor Try To Explain. (2+ / 0-)
            Recommended by:
            Eric Nelson, JanL

            For campaign purposes, the Administration has to do more than say (as they did on Sunday talk today), "it's a penalty."  

            I think linking that position to Roberts' Anti-Injunction Act holding, puts the GOTP's braintrust of screechers on the spot.

            In the opening paragraphs of Chief Justice Roberts’ opinion, he clarifies that the law specifically does not involve a tax. If it did, Roberts clarifies, the Court would have had no choice but to reject the case for lack of jurisdiction as a tax case cannot be brought until someone is actually forced to pay the tax. This is, as we know, not the case.

            The fact that the Court found that the mandate was constitutional under the taxing authority granted Congress by the Constitution is an entirely different matter. This finding does not reduce the individual mandate to the status of a tax—it merely says that as the penalty for failing to purchase health insurance will fall to the Internal Revenue Service for collection, it was something Congress could provide for under its Constitutional authority

            •  They did better with the line (3+ / 0-)
              Recommended by:
              Eric Nelson, majcmb1, Creosote

              That it only applies to about 1% of people, so isn't the biggest tax increase in history(tm).  That ties it up with all of the other provisions of the bill that are net benefits to everyone except those who CHOOSE to pay the penalty.  Obama's a good campaigner, but my line would be to say that the act makes health insurance more affordable and covers more, and you can either keep your current plan, get covered by Medicaid if you're working poor, get insurance through your employer if it's big enough and doesn't offer it now, or buy into a plan that will be affordable for the first time.  If you don't do any of that, then you pay a small penalty so that everyone else can.  What kind of tax is it that you can you avoid by getting a better deal?

              Roberts is definitely trying to have it both ways, and he knows the AIA makes even lawyers' brains glaze over.  The better comeback is "if that's true, Romney raised taxes.". There's an anti-Romney ad running right now that this plays into (serendipity or intentional?), and Roberts undercut Romney's claim that the mandate was ok at the state level, not federal.  He now has to explain why, on policy grounds, and of course he can't.

              Difficult, difficult, lemon difficult.

              by Loge on Sun Jul 01, 2012 at 12:21:30 PM PDT

              [ Parent ]

      •  ACA as Medicare without an age limit, for example, (2+ / 0-)
        Recommended by:
        olo, Nailbanger

        ... might well offend a point C.J. Roberts very clearly made:

        "Congress’’s ability to use its taxing power to influence conduct is not without limits."

        Medicare at 65 (or older), well, that's been upheld. But Single Payer for all? I cannot imagine five members of the present Court accepting that even though that would - in a Chief Justice John Marshall court - be perfectly within Congress's powers, several of them!

        Obama and strong Democratic majorities in 2012!

        by TRPChicago on Sun Jul 01, 2012 at 10:05:32 AM PDT

        [ Parent ]

        •  Neither is the Universe. (1+ / 0-)
          Recommended by:
          ozsea1
          "Congress’’s ability to use its taxing power to influence conduct is not without limits."
          Too bad he believes Congress's the President's power to wage war IS without limits

          That Giant Sucking Sound Is Wall Street Billionaires Drinking Your Blood.

          by olo on Sun Jul 01, 2012 at 10:43:37 AM PDT

          [ Parent ]

        •  Interesting, (1+ / 0-)
          Recommended by:
          TRPChicago

          Perhaps the Medicaid holding was a line in the sand re single payer.  To Roberts, the ACA with regulated insurance companies is acceptible but beyond that, he leaves an out.

          Difficult, difficult, lemon difficult.

          by Loge on Sun Jul 01, 2012 at 11:41:12 AM PDT

          [ Parent ]

    •  If we're smart, we'll be able to celebrate... (5+ / 0-)

      ...the victory in public perception -- and use that to our tactical advantage -- while at the same time being intellectually aware of the nuances of this very complicated decision.

      Whether we're still capable of being smart around these parts... well, let's just say this diary gives me more hope that it's possible than I had yesterday.

      You can call it "class warfare" -- we call it "common sense"

      by kenlac on Sun Jul 01, 2012 at 09:48:57 AM PDT

      [ Parent ]

      •  Under ACA, insurers do not have "total power" by (2+ / 0-)
        Recommended by:
        ozsea1, JanL

        ... a long, long shot. They still have too much, of course, but that's how to eke through a surprisingly progressive law in an Age of Polarization.

        Obama and strong Democratic majorities in 2012!

        by TRPChicago on Sun Jul 01, 2012 at 10:08:02 AM PDT

        [ Parent ]

    •  The endorsement of the Heritage Foundation policy? (5+ / 0-)

      Very  obviously progressive.

      That's right, I thought giving total power to insurance companies was conservative.

      My bad.

      "It turns out, by the way, that oil rigs today generally don't cause spills. They are technologically very advanced." 4-2-10 Obama's George Bush moment

      by neaguy on Sun Jul 01, 2012 at 09:53:26 AM PDT

      [ Parent ]

      •  Preserving the role of (0+ / 0-)

        the federal Congress to make the regulations it sees fit to enact IS a progressive value.  The decision has a threat to Medicare for all built in it ith the state opt-out, but in the mean time, in light of 70 years of legislative failure, I'd like to see you do better.

        And fwiw, insurance cos have total power to do everything except deny coverage and issue shareholder dividends or CEO bonuses till a threshold level of medical spending is met, to say nothing of those newly covered by Medicaid, aka single payer.

        Difficult, difficult, lemon difficult.

        by Loge on Sun Jul 01, 2012 at 11:45:29 AM PDT

        [ Parent ]

    •  These guys are scary. (1+ / 0-)
      Recommended by:
      JanL

      And Roberts more so, because he is smarter.

      With Liberty and Justice for the 1%

      by wrights on Sun Jul 01, 2012 at 11:13:51 AM PDT

      [ Parent ]

    •  Chances of BO suggesting anyone even near center (0+ / 0-)

      for the SCOTUS is worse than 50-50. BO is totally entranced by DC's phony "bi-partisanship." No amount of experience or data will sway him from this spell.

  •  I'd split the difference here: (2+ / 0-)
    Recommended by:
    John Coctostin, ozsea1

    Chief Justice Marshall stated:

    If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.
    I would say the safest thing would be for the congress to deliberate and legislate on what is necessary and proper... and then if there were still substantial enough controversy for the issue to appear before scotus then the court also has a say on the constitutionality.

    That, I think, would help keep a sudden ideological cabal from taking control of congress - like the sudden ideological freak rise of so many neocons - and leave the scotus no way to rein in that cult.

  •  told you so (0+ / 0-)
    1) he gained five votes for a theory of limitation of federal power under the Commerce Clause
    that the individual mandate would not be deemed constitutional by virtue of the commerce clause

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

    by eXtina on Sun Jul 01, 2012 at 08:12:53 AM PDT

  •  so, does this mean the end to (3+ / 0-)
    Recommended by:
    Palafox, here4tehbeer, caul

    speed limits?  those were based on the same kind of trade offs.

    •  That case, they distinguished (5+ / 0-)
      Recommended by:
      askyron, Armando, caul, shaharazade, wsexson

      based on the percentage of state budgets at issue.  It's not really a legal distinction.

      Difficult, difficult, lemon difficult.

      by Loge on Sun Jul 01, 2012 at 08:24:24 AM PDT

      [ Parent ]

    •  I was wondering more about the drinking age. (1+ / 0-)
      Recommended by:
      divineorder

      Seems to me that back in the day the Feds threatened to hold up highway money unless the states (or at least Ohio) bumped their base legal drinking age to 21 from 18.

      I don't know if (or when ) similar approaches might have been taken with the change from .10 to .08 as the legal BAC limit.

      Iraq, Iran, Issa. Nope - nothing to see here. Move along now.

      by here4tehbeer on Sun Jul 01, 2012 at 09:30:11 AM PDT

      [ Parent ]

      •  South Dakota v. Dole (3+ / 0-)
        Recommended by:
        ozsea1, here4tehbeer, DarkestHour

        Majority opinion written by Roberts' mentor, then-Chief Justice Rehnquist.

        http://supreme.justia.com/...

        When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact. . . .

        Here Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose. But the enactment of such laws remains the prerogative of the States not merely in theory, but in fact. Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in § 158 is a valid use of the spending power.

        Please help to fight hunger with a donation to Feeding America.

        by MJB on Sun Jul 01, 2012 at 10:20:15 AM PDT

        [ Parent ]

        •  Very interesting. I thought at the time it was a (0+ / 0-)

          much larger "penalty" - and certainly those in opposition would have made it sound that way.  I recall the push to raise the age from a DUI standpoint, but hadn't really thought about it like this:

          indirect encouragement of state action to obtain uniformity in the States' drinking ages is a valid use of the spending power.
          I guess that was for the Concealed Flask crowd :)

          Thanks for the link!

          Remember, all they want to do is get Romney into office and put a pen in his hand.

          by here4tehbeer on Sun Jul 01, 2012 at 11:20:13 AM PDT

          [ Parent ]

  •  One place Roberts Outsmarted Himself is.... (11+ / 0-)

    ...by upholding the ACA under the taxing power, he thereby rendered the holding on the limits of the commerce clause vulnerable to a court with one less conservative justice treating that aspect of the opinion as dicta (dicta are parts of a written SCOTUS decision that are unnecessary to the foundation of the result actually reached, and therefore merely in effect, commentary rather than binding precedent).   The conservative wing of the court has used this tactic frequently over the past 30 years to incrementally chip away at decisions off previous more liberal SCOTUS decisions.

    This is yet one more reason the 2012 Presidential election is so important, as will be 2016: to strangle Roberts "incremental radicalism" in the crib via SCOTUS appointments.  

    •  There's no way around that (11+ / 0-)

      Ginsburg said this in her concurrence.  He has a discussion of how it's supposedly not Dicta, it it was in the part of the decision that he wrote for himself alone.  It can still be important, though, because Roberts is right in a sense as he said in III.D that the CC analysis is logically prior.

      Where it's outclevered, and consistent with being dicta, every concern he had with commerce clause "expansion" and broad federal power (dread broccoli), somehow stopped mattering where the text gave even less room for manoeuver.  Congress regulate anything it wants if it imposes penalties for noncompliance, as long as it relates to other commercial regulations.  Sounds a lot like the "substantial effects" test and the NP clause.

      Difficult, difficult, lemon difficult.

      by Loge on Sun Jul 01, 2012 at 08:44:29 AM PDT

      [ Parent ]

  •  "it's the Supreme Court, stupid" (13+ / 0-)

    All power resides on the USSC bench...  doesn't matter what the other 2 branch's do IF the majority of USSC disagrees.

    we can elect progressives in the house, we can elect em in the senate, some day we may even be able to elect one to the Oval office BUT none of it matters if the USSC has a conservative majority.  a conservative majority, once seated, is there for LIFE.

    it is this very FACT that makes me a one issue voter and that one issue is who gets to nominate USSC judges while occupying the oval office.  If we fail to put a Democratic in the oval office when USSC Justices may (in this case WILL) retire during the Presidents term we fail...period.  

    "It's the Supreme Court, Stupid"

     I do not understand why more Progressives don't understand this?

    "You've got to be an optimist to be a Democrat, and a humorist to stay one" - Will Rogers

    by KnotIookin on Sun Jul 01, 2012 at 08:30:25 AM PDT

  •  In Roberts's formulation, (8+ / 0-)

    the use of the term "essential" is a dead giveaway he's not following McCullough.  It was the worst reasoned part of the decision in my view, because there's not even an attempt to follow precedent.  It actually goes beyond his commerce clause reasoning, where here he says that the mandate is not in service of an enumerated power.  This would have to be an argument that health insurance as a whole is not commerce, or it's reverse-engineering a no vote.  Both the means and the definition of the market are really questions for Congress, as Justice Ginsburg noted.

    Watching the Sunday shows, the tax argument neatly solves the problem of doing good by insurance companies while giving the GOP something with which to attack POTUS.  Of course, taxing power and tax are not coextensive; the tax penalty applies to fewer people ~1% (because it's inapplicable where there's Medicaid expansion, inter alia); and is offset by a multitude of other savings.  Doctor Senator Coburn brought back death panels canard, saying advisory bords werent that, and then the next time he got some camera, he objected that the fee for service model lets doctors and patients collude to drive up costs.  Sigh.

    Difficult, difficult, lemon difficult.

    by Loge on Sun Jul 01, 2012 at 08:35:36 AM PDT

  •  Roberts didn't even attempt to explain (15+ / 0-)

    why the analysis from U.S. v. Comstock, which he embraced at the time without reservation, should not apply.  Ginsburg called him out for this.

    Ok, so I read the polls.

    by andgarden on Sun Jul 01, 2012 at 08:41:11 AM PDT

  •  Damn straight. (14+ / 0-)

    All this BS about Dems now loving Roberts only suggests a limited understanding of what he intends.

    Roberts is solidly conservative, and an intelligent man.  If you think he's done something to undercut conservatives, it's only because he's seen a trade-off he's willing to make in order to advance his real agenda.

  •  saw a Romney ad (gotta love Iowa) (6+ / 0-)

    Where he simultaneously promised to repeal Obamacare on day one (huh?) and simultaneously reduce the deficit. He's not as smart as Roberts either, but just as dishonest.

    Difficult, difficult, lemon difficult.

    by Loge on Sun Jul 01, 2012 at 08:51:07 AM PDT

  •  Armando, your argument is valid. I've been called (10+ / 0-)

    a "village" person many times.  The outcome of the SCOTUS decision exceeded my expectations.  

    How can he be defeated? By denying him the votes necessary on the Supreme Court to enact his pernicious project. This is done by reelecting President Barack Obama and electing future Democratic presidents. There are no other options.

    This is the most important progressive project of this election and future presidential elections.

    For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die. Senator Edward M. Kennedy
  •  I hate to say this (2+ / 0-)
    Recommended by:
    anonevent, divineorder

    But I'm not sure I disagree with the concept of state rights. I do understand the arguments that, for example, those led to slavery. For that reason, I say "I'm not sure". On the other hand, if progressives want to create better futures, they should use the GOP witchcraft book, the one that gets people at a young age and, most importantly, infuses every school board in the country with radical republicans. It is fine, I guess, to rail against state rights advocates but our messaging sucks. We need to start getting into the bowels of our political system the same way the GOP has.

    •  States' Rights is a canard (2+ / 0-)
      Recommended by:
      Loge, DarkestHour

      I can't think of anyone who has ever been for States' Rights as a principled position that they apply to every question.  "States' Rights" is a slogan to be applied whenever the Federal Government does something you don't like.  And nothing else.

      Many of the "States' Rights" supporters of the Sixties saw nothing they didn't like in New Deal programs that brought projects to their states.  Only on matters of Civil Rights did the "States' Rights" banner wave.

      Or just look at what has been done last week to the rights of Montana to have more campaign financing regulation than what the Supreme Court wants.  Or the Defense of Marriage Act.  Or to states that want more stringent pollution regulations than the federal regs.

      sTiVo's rule: Just because YOU "wouldn't put it past 'em" doesn't prove that THEY did it.

      by stivo on Sun Jul 01, 2012 at 11:29:37 AM PDT

      [ Parent ]

  •  I read Roberts' ruling and it raises my 'varmint- (14+ / 0-)

    ... detector' more with each reading. Thank you, Armando, for this analysis. As usual, you've expressed concerns I didn't yet know I'd have. Now I do and I'm tired of thinking about it but can't rest 'cause the power struggle never quits. I don't know your opinion of #Occupy as a movement but I wonder if the time is right for we-the-people to occupy our Medicaid offices, petition the federal gov't to federalize that system in toto and help us to establish a reasonable baseline fee for a Medicaid card that comes from a check-off box on the 1040 and 1040A.

    If we also #occupied our local / county health departments and demanded that they / we operate them as 24/7/365 triage units that ONLY accept the Medicaid card ... do you think existing law(s) would suffice? What actions would legislatures have to take, I wonder?

    •  I read too few comments which have speculative (4+ / 0-)
      Recommended by:
      caul, va dare, KathyinSC, pixxer

      power, va dare. If this happens, what effects will it have? All too often I think knee jerk choices are made in the political arena, and that often, those are not the best choices, strategically, for the progressive side. I really like these ideas, and am intrigued to read Armando's response!

      "The opposite of war isn't peace, it's CREATION." _ Jonathan Larson, RENT

      by BeninSC on Sun Jul 01, 2012 at 09:10:58 AM PDT

      [ Parent ]

      •  If we are to ever win, we must OWN our OWN... (5+ / 0-)
        Recommended by:
        BeninSC, ozsea1, JanL, Meteor Blades, KathyinSC

        (obviously I'm taking about health care here but the Own concept can appropriate ALL our civic infrastructure) ...  Medicaid works, it's very simple. For a few hundred dollars per annum, the card entitles you to the best triage, diagnosis, and immediate treatment (including hospitalization if necessary). I'll be very happy to have that bargain. If I stay healthy, the gov't makes money off me - at the very least, I'm cheap to administer. If not, I'm  guaranteed help with drug costs, palliative care, hospice, outpatient testing (InMyO - THIS is where we need co-pays, sliding scale) - I was about to add 'etcetera, etc.' but the devil is in those damned details. But we must somewhere launch a new recitation of an old (single-payer) ideal.  Give me my Medicaid and I promise to use it responsibly - what a deal!

  •  It's language by the Red Queen again (10+ / 0-)

    Very important diary, Armando, and the link to Karlin (who I read this morning before I read this diary) completes it.

    I think we might be here:

    Photobucket

    -7.75, -8.10; All it takes is security in your own civil rights to make you complacent.

    by Dave in Northridge on Sun Jul 01, 2012 at 09:00:14 AM PDT

  •  New versus old funding (6+ / 0-)

    As Ginsberg pointed out, all that Congress must do to sidestep this particular piece of nonsense is to write their intention explicitly into the new law: that it is a modification of and shall replace the old law. Hopefully, that will become the norm and this particular issue will not cause any problems.

  •  Yes, very clever (7+ / 0-)

    He knew exactly what he was doing...we have to get Obama reelected.  NUMBER ONE REASON IS SUPREME COURT.  Good diary.  

  •  Two things. (2+ / 0-)
    Recommended by:
    shaharazade, divineorder
    Of course, he is incredibly gifted intellectually (easily the most intelligent of the conservative justices).
    Why do you think this? Not saying you're wrong.
    (2) he gained seven votes (two of them quite shocking, from Justices Breyer and Kagan) for the novel proposition that states have a constitutional right to federal funding from existing programs without condition
    Wasn't the decision that states could refuse funding without penalty? Not that they could accept funding without condition?

    it fitfully blows, half conceals, half discloses

    by Addison on Sun Jul 01, 2012 at 09:10:13 AM PDT

  •  I Get it, But (2+ / 0-)
    Recommended by:
    mithra, ozsea1

    How long is this big conservative conspiracy to "undo" the New Deal going to take?

    10-15 years?

    we don't have ten years.

    and since the majority of Americans can't even name one justice on the supreme court, I'm not sure this is huge in their minds.

    since people here like to talk about history, you might mention how FDR worked to stack the court with justices favorable to his new deal programs.

    at least partly due to that, conservatives today likely feel "what's fair is fair".

    "A civilization which does not provide young people with a way to earn a living is pretty poor". Eleanor Roosevelt

    by Superpole on Sun Jul 01, 2012 at 09:14:22 AM PDT

  •  Aren't Roberts's opinions (4+ / 0-)

    On the Commerce and NAP clauses just "dicta" since they were (a) not essential to reach the judgment and (b) not formally joined by any other Justice?

    I realize that the dissent in essence agreed with Roberts but is that enough to make that controlling, ie precedential, in the absence of a formal concurrence?

    I'm curious why the dissenters did not join Roberts as to those parts of his opinion or at least issue a concurrence.

    I know you believe you understood what you think I said, but I'm not sure you realize that what you heard is not what I meant. -- S.I. Hayakawa

    by tapu dali on Sun Jul 01, 2012 at 09:15:21 AM PDT

  •  One of the justices Obama appointed (Kagan) (5+ / 0-)

    concurred with Roberts in his opinion if I'm reading you right. So how is the re-election of Obama going to save us from Justice Roberts' agenda?

    "It depends what the meaning of 'is', is"
    Platform of the Neo-Democratic Party
    Speaking out of one side of their mouth for the little guy, their nominal constituency, and the other for the plutocracy, their real constituency.

    by Sanctimonious on Sun Jul 01, 2012 at 09:17:50 AM PDT

    •  The alternative? (0+ / 0-)

      100% of GOP Justices embraced that view, and 80% would have gone farther.  If it's true that, as Jan C Greenberg reports, Roberts switched his vote, for all we know, there was some logrolling.  Kagan and Breyer are both regarded as tacticians by Court Kremlinologists.

      Difficult, difficult, lemon difficult.

      by Loge on Sun Jul 01, 2012 at 11:52:58 AM PDT

      [ Parent ]

  •  Disagree (1+ / 0-)
    Recommended by:
    divineorder
    for the novel proposition that states have a constitutional right to federal funding from existing programs without condition (or "coercion" as the Court termed it) of the federal government.
    Only that if states except one program the congress my not change it by force

    once state has excepted a program it must except congress's condition

    “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162.
  •  All I want for Christmas is... (3+ / 0-)
    Recommended by:
    mithra, ozsea1, v2aggie2

    ...more Armando on the front page. LOTS more. I feel like this is the first time I've really learned something worthwhile around here in ages.

    You can call it "class warfare" -- we call it "common sense"

    by kenlac on Sun Jul 01, 2012 at 09:44:26 AM PDT

  •  This is huge: (1+ / 0-)
    Recommended by:
    xanthippe2
    2) he gained seven votes (two of them quite shocking, from Justices Breyer and Kagan) for the novel proposition that states have a constitutional right to federal funding from existing programs without condition (or "coercion" as the Court termed it) of the federal government.
    However, given that Obama appointee Kagan concurred the premise of your post needs work imo.
  •  John Roberts has a long history of this (7+ / 0-)

    For those of us who practice Indian law, we've seen this business of presenting cases as holding exactly the opposite of what they actually say for many many years from John Roberts.

    for example  in Kagama v US, the Supreme Court reinforced the notion that the federal government, not states, have jurisdiction and power over tribes and tribal lands (which is how we get casinos, in part), noting that states have often been the "deadliest enemies" of tribes.  (there's a long history of this, although it's far from uniform).  Roberts completely turned that around 180 degrees in his briefing.  Certainly, not really ethical.

    If I have time, I should track down the quotes of Montana v US that Roberts makes in Plains Commerce Bank to show you how he deliberately misquotes the key langaguge, and then applies the misquoted langauge to make sure the Indians involved lose.

    Clever indeed.

    Courtesy Kos. Trying to call on the better angels of our nature.

    by Mindful Nature on Sun Jul 01, 2012 at 09:51:32 AM PDT

  •  You mean like assassination as national policy? (1+ / 0-)
    Recommended by:
    greeseyparrot

    Or giving foreign corporations more rights than domestic?

    Of giving private insurance companies total control of our health care decisions?

    yeah, these are obviously progressive

    I could  name three dozen more right wing policies of this president.

    Anybody with google, or a memory, could.

    "It turns out, by the way, that oil rigs today generally don't cause spills. They are technologically very advanced." 4-2-10 Obama's George Bush moment

    by neaguy on Sun Jul 01, 2012 at 09:52:24 AM PDT

  •  As the NY Times said today (3+ / 0-)
    Recommended by:
    zane, Eric Nelson, Matt Z

    in their editorial:

    The court reached the right result on the Affordable Care Act, but that ruling was not a sign of change in a strident conservative majority.
    It is the mere fact that that conservative majority is so strident that we all have to strive to ensure that the person appointing any justices in the next four years is Barack Obama.  The consequences for our economic jurisprudence, for reproductive choice, and for social justice of Romney filling any vacancies are too horrific to imagine.

    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 Sun Jul 01, 2012 at 10:00:15 AM PDT

  •  Good essay, but depressing (2+ / 0-)
    Recommended by:
    Egalitare, 714day

    I hate what's happening in this country.

    "Religion is what keeps the poor from murdering the rich."--Napoleon

    by Diana in NoVa on Sun Jul 01, 2012 at 10:40:35 AM PDT

  •  progressive ideals eh? (0+ / 0-)

    Would that be indefinite detention? How about perpetuating the fraudulent war on drugs? Or is that the one where we hide wrongdoing behind the state's secrets act? Maybe it's the one where the NSA reads all our email? How about the one where we destroy whistle blowers who dare expose government crimes? Coddling war criminals?

    Help me out here. I'm confused.

    Progressive apologetics and excuse making in 3...2...1...

    •  Did you read the diary (1+ / 0-)
      Recommended by:
      v2aggie2

      or are you just derailing?  The inability to separate the perfect from the good, the good from the awful, the possible from the doubtful, and to distinguish between degrees of relative significance on most peoples' lives, may lie at the source of your confusion.  Crap on Obama all you want, but you don't get the high ground in an election year or otherwise for doing so.

      Difficult, difficult, lemon difficult.

      by Loge on Sun Jul 01, 2012 at 12:10:20 PM PDT

      [ Parent ]

  •  Connecting past to present , Robert Parry gives.. (1+ / 0-)
    Recommended by:
    Loge

    ..a historical viewpoint exposing the ideological and partisan Roberts decision:
    Roberts embraces the right's fake history

    Exclusive: The U.S. Supreme Court went to the brink of striking down a major act of social legislation for the first time since the New Deal before being pulled back by Chief Justice John Roberts. But he still gave right-wingers a consolation prize by enshrining into legal precedent their false founding history, writes Robert Parry.
    Curtailing Federal power by cherrypicking:
    Although giving the Affordable Care Act a thumbs-up by citing Congress’ taxing authority, Roberts gave a thumbs-down to Congress’ reliance on the Commerce Clause to justify the law’s legality. In that part of his ruling, Roberts, in effect, rewrote the nation’s founding document, second-guessing the Framers’ decision to grant Congress sweeping power to regulate interstate commerce.
    To undo James Madisons work:
    In Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.”
    Roberts decision was motivated by legacy concerns and a partisan agenda - not merely upholding the constitution:
    Yet, Roberts joined his right-wing colleagues in saying that the Commerce Clause only allows regulation of “existing commercial activity” and that the insurance mandate “compels individuals to become active in commerce by purchasing a product,” a principle that Roberts said could lead the federal government to require other mandatory purchases.

    However, Justice Ruth Bader Ginsburg, writing for the four more liberal justices, noted the fallacy of Roberts’s argument. “Unlike the market for almost any other product or service,” she wrote, “the market for medical care is one in which all individuals inevitably participate.”

    In the end, Roberts found a way to square his right-wing ideology with his concern that a five-to-four partisan vote to strike down a major piece of social legislation — for the first time since the 1930s — would damage public faith in the Supreme Court.

    Thx Armando - this comment (of mine) says very little, yet I thought Robert Parrys' background connection was a valuable addition
  •  Why Obama? (1+ / 0-)
    Recommended by:
    stivo

    If only the title cohered with the substance - and conclusion - of this otherwise excellent article. I hope someone can correct me, but I have yet to see from the President - who taught Constitutional law, after all - any recognition of the insidious threat posted by Chief Justice Robert's attack on the implied powers of the Constitution resident in the Commerce Clause and the Necessary and Proper Clause.

    As I wrote in November 2011, in Constitutional Foundation of the US Economy: Powers are Implied Not Enumerated

    Almost every major advance of the US economy has been nurtured or facilitated at some point by the active involvement and encouragement of the national government. It's been a partnership - sometimes uneasy, sometimes close, but a partnership - between government and free enterprise, that has led the development of the US economy. This role of the national government was deliberately written into the Constitution, and touches directly on Constitutional issues that the left has ignored, but which the wrong-wing has long waged a smear campaign against. These issues go to the heart of the question: What is the role and purpose of government? They include such specific issues as the General Welfare clause, states rights, implied versus enumerated powers, and the reach and scope of the Commerce clause.
    That so many progressives and liberals celebrated the decision shows that we need urgently to raise awareness and understanding of these crucial Constitutional concepts. Else, we shall lose the war of ideas by default. It does not help that so many have adopted an extreme position of rejecting the very system of American government itself as designed from the start to work only for the benefit of the rich and other elites. We need to understand and explain that there is a vicious war of ideas over the extent and nature of government, and that the modern conservative movement is in fact hostile to the design and intent of the Founders. So, thank you for pointing to Marbury vs Madison and the quote from Chief Justice Marshall.  

    A conservative is a scab for the oligarchy.

    by NBBooks on Sun Jul 01, 2012 at 11:20:04 AM PDT

    •  "Why Obama?" Because, for the next four years, (4+ / 0-)
      Recommended by:
      Jeff Simpson, Matt Z, Loge, v2aggie2

      the person who will be filling any vacancies on the Court will either be Barack Obama or Willard Romney.  Armando's point is that a Romney Presidency (and the resulting appointments) will result in a functioning majority on the Court for the Constitution in Exile formulation.  Therefore, it is even more important than ever that Obama be re-elected, lest we lose the Court for the next 10-15 years, and, in the process, lose most of the progressive jurisprudence of the past 75 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 Sun Jul 01, 2012 at 11:31:46 AM PDT

      [ Parent ]

  •  "most intelligent of the Conserv Judges" not a BFD (0+ / 0-)

    that bar is pretty low on that

    80 % of success is showing up

    Corporate is not the solution to our problem

    Corporate is the problem

    by Churchill on Sun Jul 01, 2012 at 11:24:26 AM PDT

  •  For Brutus is an honorable man: (1+ / 0-)
    Recommended by:
    stivo
  •  The Constitution must be malleable (0+ / 0-)

    otherwise the nation would have died  from sclerosis before the end of Washington's first term.  Sometimes it is used for good sometimes not.   It's good that ACA was upheld by even if by jettisoning the Commerce Clause but it was bad that the Second Amendment was gutted by ripping out its explanatory clauses.  

  •  While I appreciate the analysis (0+ / 0-)

    and we both come to the same ultimate conclusion (that we need Obama as POTUS and we need more liberals on the court), I dont agree with much of the analysis you write here.  

    I really dont see how this limits the commerce clause. It DOES expand powers under taxation.  Further, Roberts has never really seemed to care much about states rights over Fed rights.  If anything, this is an issue of political capital and really not much about Federalism.

    To me, this is one of those times when a cigar might just be a cigar

  •  Constant Vigilance. (1+ / 0-)
    Recommended by:
    v2aggie2

    Right on, Armando. This is crucial. Celebrate and stay on guard.

  •  Roberts flipped his vote according to CBS News (0+ / 0-)
  •  This is all very interesting (0+ / 0-)

    and Roberts is either clever or venal, but as far as replacing justices, how would one ever get confirmed in the present atmosphere?  If there were even a vacancy within the next 4 years.  Even if the proposition being floated that the court should be expanded to 19 it  would take years to get  through Congress.

  •  An inadequate response (0+ / 0-)

    "How can he be defeated? By denying him the votes necessary on the Supreme Court to enact his pernicious project. This is done by reelecting President Barack Obama and electing future Democratic presidents. There are no other options."

    No one would disagree that getting Obama reelected is the only reasonable short-term option that will work in imposing any sort of restraint on the Roberts/Federalist Society court.  

    But, as you argue, Roberts' behavior makes it quite clear that he's playing a long game.  He can be as restrained as he thinks he needs to be, as long as he needs to be, to keep the court's radicalism from becoming a political issue potent enough to keep Rs from winning the WH.  But any time an R does win the WH, their team gets a chance to switch out any of their justices whose health is failing, while aslo grabbing the seats of any of our justices whose health has failed.  Once he gets a sustained, long-term, comfortable majority by those means, the gloves come off, and there's no limit to what they can do.

    Modern medicine can keep people alive almost indefinitely, in almost all cases.  We would have to be able to insure an unbroken string of Ds in the WH for 20-30 years to outlast a Roberts determined, as you rightly say that he is, to grind his ideiological axe.  Conservative justices, even on life support, would never be judged to be mentally incompetent.  Their clerks, handpicked by Roberts, would write their opinions for them, and the fiction that the justice had guided the opinion would be maintained.  These intubated justices would resign, of course, as soon as an R is in the WH ready to switch them out for some 50-year old.

    If you're serious about facing the problem of a runaway court, you have to be serious about the solution.  The solution can't be to always and forever have a D in the WH.  That's the panacea.  If we could insure that, we wouldn't have to worry about SCOTUS, or anything else, any more than we would have money worries if we could turn lead into gold by waving a magic wand.

    The only solution to the problem of a runaway court is to take away the power that makes it dangerous for SCOTUS to run off the rails.  We can't control its membership always and forever.  We have to reduce its power so that it cannot run rampant no matter how malign that membership.

    Impeachment takes 2/3 of the Senate and a simple House majority.  Packing the court requires "only" the trifecta (but only for a brief period, not indefinitely), but is more likely to be seen as an abuse of the legislative power than limiting jurisdiction, which also requires the same simple majority trifecta.  

    So great have we let the Court grow in public esteem (and that, reducing the public esteem for the Court, should be job one for us), that even limiting their jurisdiction is not going to be easy.  But if you think about the obvious first target, the low-hanging fruit of Citizens United, I don't think that limiitng jurisdiction would be impssibly difficult.  If our side does manage to win the trifecta this cycle, despite the massive money imbalance created by CU, I think our coalition would have both the unifying motive and the opportunity in public opinion, to pass a limitaiton that takes campaign finance out of the Court's jurisdiction.

    After we break the ice with campaign finance, it will be realitivewly easy to meet every fresh outrageous decision from the Roberts court with a fresh jurisdiction limit.  We only get to do this when we have the trifecta, but they would need to get back the whole trifecta to reverse anything we do along these lines.

    If all of this sounds terribly radical, well, ask yourself -- is it as radical as what the other side has been planning for a generation, packing the federal bench with Federalsit Society stooges?  It's like that class warfare the other side has been waging ruthlessly for a generation, while getting us to back off even the mildest defense by labeling any such defense as "class warfare".  It's time for our side to quit pretending that this is anything but political war.  

    We should have destroyed the presidency before Obama took office. Too late now.

    by gtomkins on Mon Jul 09, 2012 at 07:10:09 AM PDT

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