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Supreme Court Chief Justice John J. Roberts
Chief Justice John Roberts
By now, you can't have missed the big SCOTUS gossip story of the decade from CBS's Jan Crawford.
(CBS News) Chief Justice John Roberts initially sided with the Supreme Court's four conservative justices to strike down the heart of President Obama's health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy—believed by many conservatives to be the justice most likely to defect and vote for the law—led the effort to try to bring Roberts back to the fold.

"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."

In addition to providing a slobberingly nauseating paean to Justice Kennedy (he's "strong," "consistent," "forceful and engaged,"—three guesses who the primary source was for Crawford's story), the story really feeds into the new Roberts-as-traitor narrative. Consider this nugget:
Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage.[...] [H}e also is sensitive to how the court is perceived by the public.

There were countless news articles in May warning of damage to the court—and to Roberts' reputation—if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

Yes, instead of reading the liberal media, Thomas and Scalia hang out at dinners held in their honor sponsored by the law firm that argued the case against the ACA. They also headline fundraisers at the reactionary Federalist Society. And, in the case of Thomas, they have wives bringing in significant income for lobbying efforts against the law.

Boy, it's a good thing the true conservatives aren't reading the New York Times, and that they're impervious to all that politickin'.

Originally posted to Joan McCarter on Mon Jul 02, 2012 at 10:08 AM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Remember when Abe Fortas (13+ / 0-)

    was forced to resign for less than what Thomas and Scalia do all the time?

    We have just enough religion to make us hate, but not enough to make us love one another. -- Jonathan Swift

    by raptavio on Mon Jul 02, 2012 at 10:14:52 AM PDT

    •  No, Fortas was worse. (8+ / 0-)

      Fortas was taking money from someone under investigation for securities violations in the hopes that Fortas could secure a pardon from LBJ.

      •  Don't you think it's worse to mingle with (7+ / 0-)

        those who have a vested interest in the decisions you make? It seems that what Fortas did effected one person, while, especially Thomas has a personal vested interest that would effect the whole country.

        Your left is my right---Mort Sahl

        by HappyinNM on Mon Jul 02, 2012 at 10:32:52 AM PDT

        [ Parent ]

      •  ABE FORTAS reference (2+ / 0-)
        Recommended by:
        yella dawg, IM

        I only have the dimmest memory of him. I highly recommend the Wikipedia page because it shows how Impeachment really is a political rather than legal tool.........Interesting how public opinion counts, too. Ditto conscience, when it works.

        SNIPPET;

        n 1969, a new scandal arose. Fortas had accepted a $20,000 retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966.[3][13] Fortas signed a contract with Wolfson's foundation; in return for unspecified advice, it was to pay Fortas $20,000 a year for the rest of Fortas's life (and then pay his widow for the rest of her life). Wolfson was under investigation for securities violations at the time and it is alleged that he expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon; he did ask Fortas to help him secure a pardon from LBJ, which Fortas claimed that he did not do.[3] Fortas recused himself from Wolfson's case when it came before the Court and had returned the retainer, but not until Wolfson had been indicted twice.[3]

        In 1970, after Fortas had resigned from the Court, Louis Wolfson surreptitiously taped a private telephone call with Fortas. The transcript of this call was disclosed by Wolfson's lawyer, Bud Fensterwald, to Washington Post reporter Bob Woodward in 1977. The Washington Post subsequently published several excerpts from the transcript, including language suggesting that Fortas might have indeed spoken with LBJ about a pardon for Wolfson, but there is no evidence that this intervention was a quid pro quo rather than a voluntary intervention for a friend. Wolfson was convicted of violating federal securities laws later that year and spent time in prison.

        The new Richard Nixon administration became aware of the Wolfson deal when a Life reporter began investigating the story; FBI director J. Edgar Hoover also mentioned a "tax dodge" Fortas had entered into with other judges, and Nixon concluded Fortas should be "off of there".[3] When Chief Justice Earl Warren was informed of the incident by the new Attorney General John N. Mitchell, he persuaded Fortas to resign to protect the reputation of the Court and avoid lengthy impeachment proceedings, which were in their preliminary stages;[3] Fortas's judicial reputation was also affected by the previous Johnson consultation and American University scandals.[6] Justice Hugo Black also urged Fortas to resign, but when Fortas said it would "kill" his wife, Black changed his mind and urged Fortas not to resign.[3] Fortas eventually decided resignation would be best for him and for his wife's legal career, and told his colleagues. William J. Brennan later said, "We were just stunned."[3] Fortas later said he "resigned to save Douglas", another justice who was being investigated for a similar scandal at the same time.[3]

        http://en.wikipedia.org/...
    •  No, I don't remember. But if we could (0+ / 0-)

      force a resignation, I'm with you on who to choose.

      There needs to be a mandatory age limit on serving on the Supreme Court.  As well as more thorough  auditing and follow up of a couple of income tax returns.

      Democrats - We represent America!

      by phonegery on Mon Jul 02, 2012 at 10:31:38 AM PDT

      [ Parent ]

      •  Don't agree (11+ / 0-)

        Thurgood Marshall was sharp as a tack, even though he was at least a million years old.

        These capitalists generally act harmoniously and in concert, to fleece the people... -Abraham Lincoln

        by HugoDog on Mon Jul 02, 2012 at 10:48:57 AM PDT

        [ Parent ]

        •  Ok, maybe make an exception? But, (0+ / 0-)

          are they running the Justices through yearly mandatory health examinations?  I worry about the  loss of  mental acuity that frequently accompanies aging.  I read that the clerks that work for the Justices  looking up the laws, and writing the opinions, (subject, of course, to the Justice finalizing it) and that it is they who notice the slow mental deterioration and urge the Justice to retire.

          Democrats - We represent America!

          by phonegery on Mon Jul 02, 2012 at 11:35:02 AM PDT

          [ Parent ]

        •  Stevens was even older... (1+ / 0-)
          Recommended by:
          HugoDog

          but unlike Marschall he had the good sense of timing his retirement to the max. Thurgood Marschall began ailing in his eighties and in 1991 resigned because of health reasons... this was a very bad timing: in my opinion he should have waited a year longer and see what the outcome of the 1992 electipns would give... if Bush won he could still retire with the same effect, but a Democratic win, as it was, would have enabled his legacy... Sadly he didn't and his legacy has become Clarence Thomas... who is the antipode of everything Justice Marschall stood for.

          Stevens on the other hand could have retired anytime between 2000 and 2008 - given his advanced age nobody would have blamed him as he was even older than Marschall was when he retired (Stevens was 80 in 2000 and 90 upon his retirement in 2010) but he tenaciously held on (thank you for that!) not wanting to give his seat to Bush to fill in.

          Obama-Biden in 2012!

          by Frederik on Mon Jul 02, 2012 at 01:33:20 PM PDT

          [ Parent ]

          •  ginsberg is really frail and i (1+ / 0-)
            Recommended by:
            johnbrown12962

            kind of thought maybe she might retire before this next election...but i guess she knows she'll be all right, and she is intellectually as great as ever...

            still, if she has to retire under a romney presidency, it would be a great loss--esp if we could have gotten someone young and healthy just a term before...

            •  Timing is everything to ensure a legacy (1+ / 0-)
              Recommended by:
              evangeline135

              My fear with Ginsburg is that she hangs on too long... and in doing that becomes the female equivalent of Thurgood Marschall on all fronts (she is already compared to him with regards to women's rights, as Marschall was to colored people's rights, but she might emulate him on other negative fronts as well...), who by bad timing his retirement saw his legacy evaporate as Thomas is his exact antipode.

              Should Obama lose re-election (God forbid!!!!), her hanging on might cost us dear... as I fear she won't have the longitivity of JP Stevens, who tenaciously hang on and was blessed with excellent health, enabling him to outlast Bush II.

              Obama-Biden in 2012!

              by Frederik on Mon Jul 02, 2012 at 01:52:43 PM PDT

              [ Parent ]

          •  Would have been a year and a half. (1+ / 0-)
            Recommended by:
            VClib

            And Justice Marshall was declining while on the bench; it was his time.  He died only a few days after President Clinton was sworn in.

      •  phonegery - tax returns? (0+ / 0-)

        Tax returns are confidential. It is a felony for anyone at the  IRS to disclose any information from a tax return to the White House, Congress, the press or the public. In addition, it is a crime for anyone in the White House or Congress to ask the IRS to audit a political foe. Using the IRS to harm your political enemies is Nixonian.

        "let's talk about that"

        by VClib on Mon Jul 02, 2012 at 05:08:44 PM PDT

        [ Parent ]

  •  One little thing (18+ / 0-)

    Because I'm mostly with you on the growing Roberts=Souter meme, but I do want to get one fact right: law firms employing both opponents and supporters of the constitutionality of the ACA sponsored that FedSoc dinner.  And the American Constitution Society annual conference at which Justice Ginsburg just spoke had many sponsors with issues before the Court.

    That said, my money's on Kennedy's clerks as the source.

  •  Thomas should have recused himself based (12+ / 0-)

    upon the lobbying effort of his wife, but that would have required a modicum of integrity and honesty on his part.  The hypocrisy of these hateful conservatives is just staggering.  

    "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

    by sfcouple on Mon Jul 02, 2012 at 10:21:13 AM PDT

    •  No recusal was required. (6+ / 0-)
      Recommended by:
      Prairie D, Adam B, jhannon, Mimikatz, kyril, VClib

      A judge on the Ninth Circuit who was in pretty much exactly the same position (his wife was Executive Director of the Southern California ACLU and he was going to rule on Prop 8) explained why a spouse's job, political or not, does not require a judge's recusal unless the spouse, or the spouse's employer, is an actual party to the case before the Court.

      The Memorandum explaining that can be found here.  The same standard applicable to Judge Reinhardt applies to Justice Thomas.  Recusal was not required in either case.  

      •  Not legally required except for the appearance (1+ / 0-)
        Recommended by:
        dfong63

        of impropriety.  Does anyone think a Judge would issue a ruling that negatively impacts a spouse's profession, a profession that provides income for both? I think not.  

        "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

        by sfcouple on Mon Jul 02, 2012 at 10:51:50 AM PDT

        [ Parent ]

        •  Did you read the link? (1+ / 0-)
          Recommended by:
          VClib

          Judge Reinhardt does a good job of explaining that judges do not need to recuse themselves because a spouse is part of an organization that takes positions on issues that come before the Court.  

          Please read that link.

          At any rate, no one who knows anything about Justice Thomas seriously thinks he needs his wife to tell him to be a conservative.  And, more importantly, had the Court adopted Justice Thomas' position, and struck down the law completely, Ginny Thomas essentially would have been out of a job.  As it is, she now gets to keep advocating for the repeal of that law.    

          •  Yes I did read the link and the Judge's primary (0+ / 0-)

            concern dealt with his wife's beliefs and ideas.  The Judge specifically mentioned in his memorandum that his wife has "no tangible interest in this case's outcome."  My argument is that Thomas' wife does have a tangible interest...heck they both do.

            "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

            by sfcouple on Mon Jul 02, 2012 at 11:41:17 AM PDT

            [ Parent ]

            •  His wife was in the same position (3+ / 0-)
              Recommended by:
              Adam B, sfcouple, VClib

              the organization she helped to run took a position on Prop 8, just like the organization Ginny Thomas worked for took a position on the ACA.  

              When the Judge says "no tangible interest in this case's outcome," he means a ruling for one side doesn't mean she gets money, as if she were a PARTY to a case.  Ginny Thomas had no tangible interest in the outcome of the case, any more than Judge Reinhardt's wife did.   If you own a company, and the company is suing another company for $1 million, you have a "tangible interest" in the outcome of the case -- the company you own gets $1 million.  

              If you are part of a gay couple waiting to marry, you have a very very very big interest in the case challenging laws against same sex marriage - but you have no "tangible interest in the outcome of the case."  There's legally and ethically a big, big difference.  If all it took is a really big interest in what happens, without being a party or having a "tangible interest" in the case, then no justice with a gay relative could hear a case involving same-sex marriage.  That's not how things work.   "Tangible interest" means more than really, really, really want it to come out a certain way, for whatever reason.  it means that you are directly affected by the ruling -- you own a financial interest in a party, or maybe it's zoning on a property you own, or maybe your family member is a defendant in a criminal case -- that kind of thing.  

              •  coffeetalk, I do agree with you on the legal (1+ / 0-)
                Recommended by:
                DuzT

                arguments you present; however, I must admit to a strong bias against our Supreme Court.  In my younger days, it was felt that the Court was the most non-political and honorable of our three branches of government.

                In the past few years my opinion has diametrically changed to the point where I have very little, if any, respect for our Supreme Court.  

                It is total speculation on my part, but I firmly believe that justices like Thomas, Scalia, and Alito knew how they were going to vote on ACA before the first syllables of oral arguments were heard.  Scalia is almost out of control with his demonstrably disapproval of President Obama and his openly biased views.  I have zero legal training but it also seems to me that there are some justices who blatantly don't follow their own precedents----it is as if they go to their clerks, tell them this is how I am going to vote now go find me some legal justification. Our laws are being twisted like a pretzel to justify almost anything, much like religious texts can be used to justify some of the most blatant abuses of human rights.

                I am a retired professional scientist, an honorably discharged veteran of our Armed Forces, reasonably well read and informed, and now consider our Supreme Court as corrupt, biased, and without any sense of honor for their responsibilities.  

                I guess we'll have to agree to disagree about whether Thomas should have recused himself.  I have such little respect for him as a jurist that I am sure my bias is directing my opinion.  

                I truly fear our wonderful experiment in a representative Republic is slowly sinking into the mire of corruption and greed.  

                I do appreciate and respect your informative comments and opinions....it is nice 'speaking' with you.  

                "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

                by sfcouple on Mon Jul 02, 2012 at 01:44:44 PM PDT

                [ Parent ]

                •  sfcouple - the method you described for deciding (1+ / 0-)
                  Recommended by:
                  sfcouple

                  cases was how Thurgood Marshall himself described how he operated as a Supreme Court Justice. He would decide the case and then task his law clerks to find the law to support his view. I actually think it is a very common practice, and that it isn't restricted to one ideological view.

                  "let's talk about that"

                  by VClib on Mon Jul 02, 2012 at 04:47:50 PM PDT

                  [ Parent ]

                  •  Agreed, I have slowly come to this realization (0+ / 0-)

                    after many years of self dilution about the purity of our legal system.  

                    I'm particularly incensed over the Citizens United v. Federal Election Commission.  It is inconceivable to me that these black robed politicians would allow our election process to be sold to the highest bidder.  

                    There is no doubt in my mind that we will now have foreign entities contributing huge sums of money to influence our elections.  

                    "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

                    by sfcouple on Mon Jul 02, 2012 at 05:31:33 PM PDT

                    [ Parent ]

        •  This decision helps her profession (3+ / 0-)
          Recommended by:
          nolagrl, kyril, VClib

          She can still lobby against the ACA's existence.

          •  Not so sure about this. If ACA or any part (2+ / 0-)
            Recommended by:
            yella dawg, nolagrl

            of it had been ruled unconstitutional there would still be upcoming congressional bills for her to exercise her expertise in lobbying.  It is the appearance of conflict of interest that is troubling to me, and I'm guessing for many others.  

            Although this is a moot point here because we're talking about Thomas, whose strings are firmly attached to Scalia's paws.  

            "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

            by sfcouple on Mon Jul 02, 2012 at 11:10:42 AM PDT

            [ Parent ]

          •  True (1+ / 0-)
            Recommended by:
            IM

            But if it was struck down she would just find some other "liberal" law to go after.  That's what they do.  That is their profession.  

            "I am neither bitter nor cynical but I do wish there was less immaturity in political thinking." Franklin D. Roosevelt

            by djbender on Mon Jul 02, 2012 at 11:26:12 AM PDT

            [ Parent ]

            •  Which is why no recusal is required. (1+ / 0-)
              Recommended by:
              VClib

              Or else you have to forbid spouses of judges from having political jobs.  

              A spouse in a job with an organization that takes polisitions on political issues) like Ginny Thomas, or Judge Reinhardt's wife (Executive Director of the Southern California ACLU) is going to "have a position" on issues all the time.  As he said,

              My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence.  She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa).  I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is male or female. My position is the same in the specific case of a spouse whose views are expressed in the capacity of an officer, director, or manager of a public interest or advocacy organization that takes positions or supports legislation or litigation or other actions of local, state, or national importance.  

              Proponents’ contention that I should d recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses.  When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics.  I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our cd Judge Dorothy Nelson).  The committee thanked me for my letter and sometime later changed the rule.  That time has passed, and rightly so.  In 2011, my wife andourt Judge Mary Schroeder, Judge Betty Fletcher, and  I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them.  It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers.  Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads.  

              Nor can I accept the argument that my wife’s views constitute an “interest” that could warrant my recusal under § 455(b)(5)(iii), as such a reading would require judges to recuse themselves whenever they know of a relative’s strongly  held opinions, whether publicly expressed or not.  See § 455(b)(5)(iii) (requiring
              recusal whenever a relative “[i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding”).  I likewise cannot conceive how such an “interest” could be said to exist by virtue of the fact that the ACLU/SC as an organization has expressed positions regarding the subject at issue in this case.  The ACLU/SC is devoted to advocating for numerous social issues, many of which come before the court, of which same-sex marriage is but one.  To suggest that because my wife heads the ACLU/SC she has an “interest” cognizable under § 455(b)(5)(iii) in cases regarding which the organization has expressed a position would be to suggest that I must recuse myself from cases implicating the constitutionality of the death penalty, school prayer, and affirmative action, among many others.  Moreover, because § 455(b)(5)(iii) applies not only to the interests of  a judge’s spouse, but to the interests of any “person within the third degree of relationship to either” a judge or a judge’s spouse, § 455(b)(5), such a reading would require a judge’s recusal when various other relatives, such as greatgrandchildren and nephews-in-law, head a public interest  organization that has expressed a position concerning a case.  I cannot agree that § 455(b)(5)(iii) requires judges to recuse themselves whenever a relative, close or otherwise, plays a prominent role in a public interest organization that, as part of a broad and general mission, takes a position on a subject that is at issue in a case, or on a case itself.

              •  I'm agreeing (0+ / 0-)

                His wife is going to be political no matter what law is passed.  She doesn't give a damn what it is, she just knows if it's "liberal" it's not good and must be stopped.  If you are asking him to be recused for this, than you are asking him to be recused from every ruling.  Conservatives can make anything into a political case (especially if it lines their pockets).  Coke vs Pepsi?  Cubs vs White Sox?  Cats vs Dogs?  Doesn't matter.  I can't wait for the next fight for a SC justice comes up.

                "I am neither bitter nor cynical but I do wish there was less immaturity in political thinking." Franklin D. Roosevelt

                by djbender on Mon Jul 02, 2012 at 12:12:24 PM PDT

                [ Parent ]

        •  I think that an ethical party might vote (1+ / 0-)
          Recommended by:
          IM

          against the interests of a spouse. Thomas doesn't bother with ethical considerations.
          At best, it has an appearance of self-interest. Kagan and Sotomayor didn't have to recuse themselves from a few decisions but they felt it was the ethical thing to do.

      •  Basic ethics law... (2+ / 0-)
        Recommended by:
        kyril, 714day

        suggests even the APPEARANCE or POTENTIAL for impropriety is reason enough to recuse.

        Basically, the average federal bureaucrat has a recusal/ethics standard that is exponentially more strict than that of the people who interpret our Constitution. No f'ing way Joe Schmoe would be able to work on certain projects if the wife was basking in millions from the very industry they were working on.

      •  there's a difference between ethical and legal (4+ / 0-)
        Recommended by:
        yella dawg, LNK, kyril, 714day

        a huge difference between what's "required" ethically and what's "required" legally.

    •  Thomas should have recused himself based on the (2+ / 0-)
      Recommended by:
      johnbrown12962, DuzT

      fact that he's incompetent.

      The modern conservative is engaged in one of man's oldest exercises in moral philosophy;the search for a superior moral justification for selfishness

      by CTMET on Mon Jul 02, 2012 at 02:04:34 PM PDT

      [ Parent ]

      •  Two theories about Thomas (2+ / 0-)
        Recommended by:
        CTMET, DuzT

        1)he's incompetent and just goes along with his buddy Scalia on everything and 2)he is so petty every decision he makes he goes along with the conservative side as payback for the liberals for giving him such a deservedly hard time over his confirmation hearings.Think its a combination of both.

        •  johnb - #1 is wrong (1+ / 0-)
          Recommended by:
          coffeetalk

          Scalia and Thomas agree less than at least one or two other pairings, and have for many years. Thomas's opinions have been more independent of Scalia than the reverse. Based on the data you could argue that Scalia follows Thomas. Thomas does have no love loss for liberals, that's for sure.

          "let's talk about that"

          by VClib on Mon Jul 02, 2012 at 05:14:46 PM PDT

          [ Parent ]

  •  ZOMG a media effects argument: Liberal MSM! (3+ / 0-)
    Recommended by:
    yella dawg, kyril, IM
    But Roberts pays attention to media coverage.[...] [H}e also is sensitive to how the court is perceived by the public.

    Präsidentenelf-maßschach"Nous sommes un groupuscule" (-9.50; -7.03) "Ensanguining the skies; How heavily it dies; Into the west away;;Past touch and sight and sound; Not further to be found,;How hopeless under ground; Falls the remorseful day".政治委员, 政委!

    by annieli on Mon Jul 02, 2012 at 10:23:14 AM PDT

    •  abcd (4+ / 0-)
      [H}e also is sensitive to how the court is perceived by the public.
      Isn't this a good thing?

      The article read to me as if the conservative justices are complete partisans.  We need to get the meme out about the activist republican judges.  Gives me very little faith in the future of the judiciary.

      Corporations are driven by the bottom line, not by concerns for health, safety or the environment. This is why we need government regulations.

      by the dogs sockpuppet on Mon Jul 02, 2012 at 10:27:10 AM PDT

      [ Parent ]

      •  Roberts wants us to respect the Court (3+ / 0-)
        Recommended by:
        nolagrl, Adam B, kyril

        If his loyalties are divided, they're divided between conservatism and the institution of the Supreme Court.

        Roberts doesn't like 5-4 decisions; he thinks they show doubt and strengthen controversies rather than settling them.  He doesn't like it when the Court overrules itself down the road; he thinks it says less about the world changing than about the Court ruling wrong the first time.  He doesn't like narrow technical rulings that Congress can easily bypass with new legislation; he thinks the Court's concern should lie with the general, not the specific.  He's sensitive to public perception because he doesn't want the Court to be seen as arbitrary or partisan - even if that's what they are - because that threatens the legitimacy of the Court itself.  To the extent that these preferences lead him to side with the Court's "liberal" wing, he has no problem with that.

        To those who say the New Deal didn't work: WWII was also government spending

        by Visceral on Mon Jul 02, 2012 at 11:23:41 AM PDT

        [ Parent ]

  •  Has information about judicial deliberations (3+ / 0-)
    Recommended by:
    foresterbob, kyril, 714day

    been made public before?

    Your left is my right---Mort Sahl

    by HappyinNM on Mon Jul 02, 2012 at 10:35:17 AM PDT

  •  This is great for conservatives! (6+ / 0-)
    Recommended by:
    HugoDog, kitebro, Black Max, kyril, GOPGO2H3LL, IM

    One of their own has done what they always claim to want: exercised judicial restraint.

    Ha!  They've buttered their bread, now they can lie in it.

  •  Impeach Thomas, Scalia? (2+ / 0-)
    Recommended by:
    newjeffct, kyril

    Wouldn't work, but the Rethugs got a lot of publicity when they tried to impeach Chief Justice Warren.

    I think, therefore I am. I think.

    by mcmom on Mon Jul 02, 2012 at 10:42:15 AM PDT

  •  A lawyer on WGN Radio overnight last night... (6+ / 0-)

    ...I wonder what she was on, frankly...said that the Court "doesn't do politics" and "just follows the law."

    She must never have read Bowers v. Hardwick, Citizens United, or the Lochner decision, or she'd know that was a damned lie.

  •  One ruling, does not a liberal make (15+ / 0-)

    Roberts is a die hard conservative and will continue to make crazy rulings like Citizen's United. Simply by not going over to the absolute crazy side of Scalia and Thomas with this one decision, will not make historians label this as a moderate court.  It's been one of the worst courts in the country's history and will continue to be from this point forward.

  •  Maybe I'm in the minority (6+ / 0-)

    but after reading the opinions, it seems to me that Justice Roberts was conservative, and consistently so.

    His opinion on the Commerce Clause is pretty much a conservative's reading of the power of the federal government.  Likewise his opinion on how much control the federal government can exercise over states through the power of the purse (where he was joined by two liberal justices).  

    The part where he was consistently conservative, it seems to me, is in the ruling finding the mandate constitutional as a tax under the Taxing Power.  It is -- or used to be, anyway -- a "conservative" (in the more traditional sense) principle of jurisprudence that you don't strike down an act of Congress if you can find any way at all to read it so it is constitutional.  It seems to me that is what Justice Roberts did.  He said, essentially, this argument that it's a tax is not a great argument, and I don't think it's the best argument, but I can't consider it frivolous and I guess I can see it that way -- "fairly possible" is the term he used -- so if that gives the government an argument that it's constitutional, I have to go with that.  

    Maybe, just maybe, he believes the notion that he should not strike down an act of Congress if it's "fairly possible" to construe it as constitutional.  I, frankly, don't completely buy the argument that it's a tax, but I can see how the argument was made, and it's not a ridiculous argument, so there you go.

    I also agree with one commentator this past weekend who said, "while we're all playing checkers, Justice Roberts is playing chess" and that Justice Roberts is looking, over the long term, to implement a more conservative view of the federal government's role and power under the Constitution, and this decision - especially in the Commerce Clause and Medicaid parts - clearly is a step in that direction.  Justice Roberts, I suspect, understands that if he wants the limiting of federal power to be the legacy of the Court, it's a step by step process, and this is one step for his goal.  

    •  Roberts seemed (4+ / 0-)
      Recommended by:
      vcmvo2, harrije, kyril, True North

      to think it was a tax at argument.  No one has presented an argument that if Congress passed such a thing and called it a tax, it wouldn't be a tax.  The dissenters didn't come up with any serious argument why it's not a tax.  I think he made the decision (as much as any of the other justices, cf. Thomas, Scalia) on actual legal principle.  

      BTW, I think that over at Balkinization, one of the bloggers explains at length that Roberts clerked for Henry Friendly of the Second Circuit, who strongly believed in the taxing power, in the old conservative way.  So there's that, too.  

  •  I just hope that Obama gets to replace (11+ / 0-)

    one of the five conservatives on the Court - Scalia, Thomas, Roberts, Alito or Kennedy if he is re-elected.

    Just one.

    (well, two would be nice... but, one is a start)

    "I'm not a member of an organized political party - I'm a Democrat." Will Rogers

    by newjeffct on Mon Jul 02, 2012 at 10:47:51 AM PDT

    •  Chances are decent that he'll be able to replace (3+ / 0-)
      Recommended by:
      DRo, newjeffct, kyril

      both Scalia and Kennedy due to their age.

      "A man doesn't save a century, or a civilization, but a militant party wedded to a principle can." - Adlai E. Stevenson

      by Zutroy on Mon Jul 02, 2012 at 10:56:01 AM PDT

      [ Parent ]

    •  Scalia and Kennedy are elderly enough (1+ / 0-)
      Recommended by:
      newjeffct

      to conceivably leave the court during Obama's second term. Roberts, Alito, and Thomas are likely to stick around. Remember, Obama will probably have to replace Ginsberg and possibly Breyer as well. You know he won't name any real progressives, but it's easy to posit his replacing two far-right and two center-left justices with two center-right (you know he'll throw a sop to the right) and two more center-left justices, and take some of the right-wing fringe radicalism out of the Court.

      •  I'm sure Ginsberg (1+ / 0-)
        Recommended by:
        Black Max

        is almost certain to leave if Obama is re-elected.

        "I'm not a member of an organized political party - I'm a Democrat." Will Rogers

        by newjeffct on Mon Jul 02, 2012 at 11:08:06 AM PDT

        [ Parent ]

        •  Makes sense; it's the only way she can be sure (2+ / 0-)
          Recommended by:
          johnbrown12962, Black Max

          her seat remains progressive.

          Unfortunately it's just as likely scalia and kennedy hang on well into their drooling, incontinent dodderage, for the same reason:  to keep their seats warm for the next radical right wing nut jobs, to be nominated by the next republic party president.

          On the plus side, time is a greater factor in the demise of the republic party base relative to the democrats.  The fox demographic will be passing away in droves over the next 12 years, and increasingly shrill eliminationist rhetoric from the right re: democrats in power will find less of an audience.

          At least we can hope.

          "When and if fascism comes to America...it will not even be called 'fascism'; it will be called, of course, 'Americanism'" --Professor Halford E. Luccock of Yale Divinity School; New York Times article from September 12, 1938, page 15

          by demongo on Mon Jul 02, 2012 at 12:20:18 PM PDT

          [ Parent ]

    •  If President Obama wins re-election (9+ / 0-)

      I suspect that the Republican-appointed justices will stay on the Court until after the 2016 election, so that a Republican president (they hope) can replace them.

      That would be more in line with how these decisions are made.  Justices don't get to name their successor, but they have some leeway in deciding when to retire, so they consider the party of the President who nominates their successor.  

      According to the book the Brethren, for example, Chief Justice Warren retired so that LBJ could appoint his successor.  When Abe Fortas had the issues, LBJ couldn't get a nominee confirmed before the election, so it ended up that Nixon appointed Warren Burger to replace Warren.  

      I know that Justice Byron White, appointed by Kennedy, waited for a Democratic President (Clinton) to retire, even though he was a very conservative Justice in many ways.  

      If President Obama wins re-election, it seems to me that the Justice he is most likely to replace is Justice Ginsburg, who may want to retire during his term to avoid the possibility that a Republican appoints her successor.  

    •  Scalia,Kennedy ,and especially Thomas. (0+ / 0-)

      It would be great if Obama is reelected that he replaces these three stooges..Integrity alone would back if Long @&*# Silver Thomas was replaced.Disgrace the man is even on the court.

  •  Krauthammer channels Roberts (4+ / 0-)
    Recommended by:
    DRo, Saint Jimmy, kyril, IM

    Why I did it?: This does not sound like the usually Krauthhammer rantings. Could be Roberts using him to get his side out there.

    Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.
  •  It is perfectly plausible (6+ / 0-)
    Recommended by:
    vcmvo2, harrije, yella dawg, kyril, True North, IM

    that Roberts's final vote was based on principle, not improper considerations.  At argument, he clearly seemed to think the mandate was a tax.  If he did vote to invalidate the mandate, it may well have been on the assumption the minority actually had an argument that it wasn't.  But the minority didn't have any argument -- at least if it did, it was one of those super-secret arguments the didn't put in their opinion.  In addition, the minority wanted to strike down the whole law, not just the mandate.  It would have been perfectly reasonable for Roberts to have changed his vote under these circumstances.  

  •  Limbaug: "He caved to political pressure from (0+ / 0-)

    powerful Democrats."

    "We don't need someone who can think. We need someone with enough digits to hold a pen." ~ Grover Norquist

    by Lefty Coaster on Mon Jul 02, 2012 at 10:56:47 AM PDT

  •  Have you guys read the comments on the CBS (11+ / 0-)

    story? Down the ugly rabbit hole into NWO conspiracies, Jewish plots, bribery and coercion of Roberts, Bilderbergers, calls for immediate armed insurrection, you name it, they're spewing it. Knee-jerk hate and craziness.

  •  who needs the news (1+ / 0-)
    Recommended by:
    kyril

    when you can watch the pretty swirling colors inside the bubble?

  •  Justice Thomas (8+ / 0-)
    Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court
    Does this mean Thomas hasn't found out yet that his wife called up Anita Hill?
  •  They screwed themselves. (4+ / 0-)
    Recommended by:
    GOPGO2H3LL, kyril, johnbrown12962, DuzT

    If the other conservatives on the Court hadn't insisted on striking down the whole law, they might have kept Roberts on board.

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Mon Jul 02, 2012 at 11:12:24 AM PDT

  •  Betting on Kennedy's office as source of leak (3+ / 0-)
    Recommended by:
    kyril, 714day, IM

    Crawford's piece was very nice to him. And talks about how pissed he was -- pissed enough to get revenge much like an 8 year old would, by going off with his friends and not joining Roberts's opinion, even though he and the rest agreed with it. Nose, face, etc..  (Balloon juice, via Atrios.)

    In any case, some principled conservative was principled enough to break confidentiality protocols and leak this. Those principled conservatives are just so .. principled.

    What do we want? Compromise! When do we want it? Now!

    by itswhatson on Mon Jul 02, 2012 at 11:16:30 AM PDT

  •  What this really means to "us" (7+ / 0-)

    This was a wonderful ruling.  Few here will argue that, of course.  And, what this means to us is that for more "wonderful" rulings, we MUST re-elect President Obama lest we see the large number of aging justices on SCOTUS retiring and being replaced by Mitt Romney appointees.

    If for not other reason, we MUST work tirelessly to get Obama re-elected.

    Sure, we won this one and yeah, it was a shocker because of who made the deciding vote.  But, that isn't something we're going to see going forward if we don't have due diligence.

    If you think Mitt is going to be a weak candidate because of this ruling and because of Bain Capital, think again, folks.  This isn't going to be an easy win for Obama.  Not by a long shot.

    The truth is sometimes very inconvenient.

    by commonsensically on Mon Jul 02, 2012 at 11:17:30 AM PDT

    •  I agree (5+ / 0-)

      But I think too many are spending time on inside baseball when the idiot republicans just continue to have a tantrum on this.

      The ACA was upheld and that's that. Now on to re-electing the President and trying to hold the Senate.

      This battle if anything should point out how desperately we are in need of new appointments to the Supreme Court from President Obama and not the Mittster.

      I read the whole opinion and I found Roberts decided it in a way that allowed him not to just strike down a law that he believed should be read as constitutional from the get go. That is an old-fashioned conservative view and not some radical teahadist view of the Constitution.

      I followed his reasoning. As to how he will rule on other issues we shall see. But as Chief Justice he might just be reminding the idiots like Alito, Thomas and Scalia that he is the Chief Justice and they're not.

      So whether they like him or not - he wrote the decision. People can threaten to impeach him, but really on what grounds? Making up stuff about his epilepsy and other baloney will not get them where they want to be any faster.

      If I were Roberts I would tell them to get lost. Anyone who wants to know what he was thinking can get the transcripts from the oral arguments and/or can read his decision.

      In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, comes wisdom through the awful grace of God ~RFK

      by vcmvo2 on Mon Jul 02, 2012 at 11:28:29 AM PDT

      [ Parent ]

      •  We won't see any legitimate "impeachment" thingy (1+ / 0-)
        Recommended by:
        kyril

        The SCOTUS rulings never please everyone.  If anyone was going to be impeached, it would be over Citizens United, methinks.

        Roberts has ruled correctly, IMO.  It was a "considered opinion" and it went against the conservatives.  So sorry 'bout that, guys.  Citizens United went in your favor.  So, chit happens, y'know?

        I too follow Robert's reasoning.  The big poison that this can present is in the word "tax".  Remember that Obama said he wouldn't ever increase taxes on the middle class and remember the "read my lips" statement that eventually ended up causing "Bush One" to lose.

        If the repubs "work" this correctly, this can be a cancer I'm not sure Obama can eradicate.  Time will tell, of course.

        Oh, and for those that think this isn't gonna cause taxes to increase on most taxpayers?  Get real, you guys.

        The truth is sometimes very inconvenient.

        by commonsensically on Mon Jul 02, 2012 at 11:35:11 AM PDT

        [ Parent ]

  •  No one else has figured it out? (1+ / 0-)
    Recommended by:
    evangeline135

    The answer is very simple.  John Roberts is gay, and when Obama came our for gay marriage, Roberts flipped his allegiance.  I'm quite serious.  Sometimes the answer really is the simple one.

  •  Top Five Flip-flop Conspiracy Theories (1+ / 0-)
    Recommended by:
    kyril
    1) John Roberts caved to the left-wing media

    2) Sen. Patrick Leahy had a mole in the court

    3) Roberts was cowed by President Obama’s 2010 State of the Union

    4) Roberts wanted love from the D.C. establishment

    5) Republicans stink at picking Supreme Court justices


    "A recent study reveals Americans' heads are larger than they were 150 years ago but sadly there is no indication that the extra room is used for anything." - entlord

    by AlyoshaKaramazov on Mon Jul 02, 2012 at 11:44:14 AM PDT

    •  freepers say he was blackmailed (0+ / 0-)

      In their warped theory, Roberts who has 2 adopted kids was  discovered to have done some sort of illegal adoption and threatened to be exposed by evil Obama.
      Seems right up there with birtherism.

  •  I'm sure that demeaning and branding (1+ / 0-)
    Recommended by:
    kyril

    the Chief Justice a traitor is going to work out swimmingly for these brainiacs.

    I'll bet he's happier than ever that he didn't jump into the Teabyss.

    Talk about being vindicated by subsequent knowledge.

    Also, I guess this kills the superclever long game meme, eh?

    Obama is at war with radical anti-American terrorists. The radical GOP is at war with American women. Take that and run with it DNC, you inept fucking pikers.

    by GOPGO2H3LL on Mon Jul 02, 2012 at 11:45:50 AM PDT

  •  Roberts saved SCOTUS' last shred of legitimacy (6+ / 0-)

    The whole system depends upon ordinary people believing that SCOTUS is impartial, intellectual, contemplative, and even-handed. Even if we don't understand all the nuances of the law, or the meaning of the various latin phrases, our belief in the fairness of the system is what keeps it together.

    Bush v. Gore, Citizens United,  and Clarence and Ginni Thomas, have pushed the repuation of the court to the edge of the precipice. Overturning ACA would have been perceived as brutally partisan, and completely devoid of intellectual honesty. 4 out of 5 law professors interviewed on cable news would have agreed.

    I think in the process of saving ACA, Roberts saved his own ass as well.

    “No, Mitt, corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they love, they cry, they dance, they live and they die. Learn the difference.”-- Elizabeth Warren

    by Positronicus on Mon Jul 02, 2012 at 11:50:52 AM PDT

  •  Question about Conservative narrative (1+ / 0-)
    Recommended by:
    kyril

    PLEASE CAN WE DO SOMETHING ABOUT THIS?

    Conservatives have their narrative and they promote it with vigor.

    I am disabled and feel doubly lame just blogging with other Kossacks about :

    AIN'T IT AWFUL.......

    Couldn't we create a pleasant stream of public opinion efforts aimed at influencing SCOTUS? Something that would work.

  •  Maybe he didn't change his mind at all (1+ / 0-)
    Recommended by:
    kyril

    this story certainly disrupts any "conservative wing of the court are judicial activists" and "Roberts exercised restraint" narrative.  As far as the leak goes just because it is laudatory of Kennedy I don't see it as coming from his chambers necessarily.  He's always come across as a great respecter of the institution and just can't imagine him being first justice to sanction clerk leaks or such naked politics.  Alito, Scalia, or Thomas not so much.
      Thomas is praised as oblivious to the media and the Limbaugh today had a diatribe about Roberts mind being changed by "the liberal media", so that rather than medication or legacy must be the official Kochco line.  

  •  seems like it's basically the (0+ / 0-)

    same as the birthers.

    Neither can swallow a basic fact, so they invent all sorts of conspiracy theories to make themselves feel better about denying reality.

    Obama is a natural born U.S. ciitizen

    PPACA is constitutional.

    Get over it, weasels.


    "A recent study reveals Americans' heads are larger than they were 150 years ago but sadly there is no indication that the extra room is used for anything." - entlord

    by AlyoshaKaramazov on Mon Jul 02, 2012 at 11:59:43 AM PDT

  •  Will Roberts be like Earl Warren? (0+ / 0-)

    A conservative, Republican appointed by Eisenhower (who was said to have regretted the appointment) who as California AG moved aggressively for the interment of Japanese-Americans.

    As Chief Justice presided over (and voted for) Brown v The Board of Education, Miranda, Gideon (right to an attorney) Engel (no compulsory prayer in public schools) and Griswold v Connecticut (the right to privacy - which was the basis for Roe and Lawrence.)

    The right despised Warren.  Almost all my childhood I heard "Impeach Earl Warren"  The last time I remember seeing it was in 1976 on a bus bench in Portland Oregon.

    No indication that Roberts will be like Warren, but being a Supreme can and has changed a man.  

    •  no he will be conservative (1+ / 0-)
      Recommended by:
      johnbrown12962

      I think he didn't want to go down as the judge who single handily undid the Obama presidency. I am sure he would rather have the voters do that.
      Don't expect him to become a moderate.

    •  Earl Warren (0+ / 0-)

      Ear Warren never was a true conservative. Remember in the 1940s many Republicans were a lot more liberal than nowadays. In many ways Warren governed as a progressive.  As Governor Warren initiated public works projects similar to those of the New Deal to capitalize on wartime tax surpluses and provide jobs for returning veterans. Warren also built up the state's higher education system based on the University of California and its vast network of small universities and community colleges. He also raised gasoline taxes that funded a massive program of freeway construction. Not exactly behaviour one would expect from a Republican noawadays.

      As to the despicable Japanese-American internment, it's sad to say but many Democrats, including Roosevelt, endorsed this move as well... so don't blame Warren, but the "Zeitgeist" for that.

      Warren's appointment to the Court was a quid pro quo for supporting Eisenhower in 1952.

      Obama-Biden in 2012!

      by Frederik on Tue Jul 03, 2012 at 05:06:54 AM PDT

      [ Parent ]

  •  Wonder if the other justices cyberbullied him? (1+ / 0-)
    Recommended by:
    DuzT

    50 REASONS WE THINK YOU SUCK!!!!

    1. Ur UGLY!

    2. Proposed fn. 3 is BULL SHIT everybody is laughing at you!!

    3. SPAZ did u take yr MEDS hahah

    JOHN I DIDN'T MEAN THAT LAST 1 NINO MADE ME!!!!!!!! Clarence

  •  Constitution and Thomas (2+ / 0-)
    Recommended by:
    johnbrown12962, DuzT
    "Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). "
    I gather that he avoids reading the Constitution as well, less that it should influence him.

    Obama-Biden in 2012!

    by Frederik on Mon Jul 02, 2012 at 01:25:21 PM PDT

  •  "make-up call" (0+ / 0-)

    what's sad, is that the next case up, will get a "make-up call" as we say in the sports world...to "equalize the damage," which in this case will be his conservative reputation.
    what's that case going to be?  

    Make the RepubliCONS own it! It's their health plan, fer chrissakes!

    by stagemom on Mon Jul 02, 2012 at 01:54:22 PM PDT

  •  Thought Kennedy was supposed to be the swing vote (0+ / 0-)

    on these things.He's no friend to liberals on anything.Just remember Gore vs.Bush in 2000.As for Thomas I don't know why the man isn't impeached since what his wife does is an obvious conflict of interest.Man is a joke as a Supreme Court Justice.Doesn't ask questions.Doesn't write any opinions.Just votes the way Scalia tells him to.

  •  I've got a creepy feeling.... (0+ / 0-)

    .....that Roberts and the Rethugs could be laughing all the way to the briar patch on this one.  

    By the rules of the Senate:

    TAX BILLS ARE NOT SUBJECT TO FILIBUSTER!

    If Romney wins, there would be no veto and repeal would be filibuster proof.  

    Many have viewed Romney's threat to repeal "Obamacare", on his first day in office as empty bluster.  It's not.

    Labor was the first price paid for all things. It was not by money, but by labour, that all wealth of the world was originally purchased. - Adam Smith

    by boatwright on Mon Jul 02, 2012 at 02:48:44 PM PDT

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