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Politicoand TPMare reporting on Jeff Toobin's new book. You can read about it there, but here's the quote I am going to talk about:

[F]or Roberts personally and the conservative cause generally, his vote and opinion in the health care case were acts of strategic genius. … Roberts at a minimum laid down a marker on the scope of the commerce clause. … Roberts’s opinion is potentially a significant long-term gain for the conservative movement. … Roberts bought enormous political space for himself for future rulings.
We usually believe that the conservative boogeymen are going to pwn us all with some amazing strategy that we walked into. It's one thing to not underestimate your enemies, but it's another thing to turn them into the Illuminati.

Roberts may have done those things. But the overly credulous Toobin (who seemed to think that the oral argument in the PPACA case like, really mattered) seems to, well, shoot first and then aim later.

Why am I skeptical? First of all, because I've never known conservatives to pull punches as part of some grand strategy. They are very good at putting points on the board. Take power first, ask questions later. This is why, for example, they filibuster everything knowing this may just end the filibuster, or when they were in the majority in the House they shut out the minority, knowing that it was likely when the shoe was on the other foot it would happen to them. What on earth is winning elections and putting justices on the bench for if they won't strike down the number one opposition item of the GOP? I know some will disagree; that this gives them an issue--just like abortion. But there would be different political consequences for banning abortion and overturning the PPACA.

Second, largely for the foregoing reasons, I think that any super-duper smart political strategist would know that Obama's reelection was made all the more likely by upholding the PPACA. And that means another four years where the replacement for a conservative justice would be appointed by Obama.

What's the long game here? Keep Obama in the White House so he can appoint 1-3 more liberal justices putting the Chief in the permanent minority?

No. No way.

Toobin is being spun by delusional conservative clerks who just experienced their "When Prophecy Fails" moment and cannot believe they lost their Waterloo. If this is the kind of strategy the best legal and political minds of the conservative movement can muster, then the country will be better off for it. They just can't believe they lost and they think that what's going to happen is that Roberts is going to reanimate the commerce clause attack on the welfare state? Scalia already blinked on that. Kennedy already blinked on that.

Ockham's razor applies here. The simplest explanation is that Roberts became a man of the institution and wanted to preserve it. He knew that striking down the ACA would destroy what little legitimacy the court had left. It's that simple. It's not part of some sekrit master plan.

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Comment Preferences

  •  Tip Jar (21+ / 0-)

    GOP: The Party of Acid rain, Abortion of the American Dream, and Amnesty for Wall Street.

    by Attorney at Arms on Sun Sep 16, 2012 at 09:27:08 PM PDT

  •  Your point on how upholding the law (7+ / 0-)

    helps Obama's reelection, and gives Obama the chance to eventually replace Scalia is the best counterpoint to this "betrayal" meme I've heard. I'm going to use it!

    -1.63/ -1.49 "Speaking truth to power" (with snark of course)!

    by dopper0189 on Sun Sep 16, 2012 at 09:29:46 PM PDT

  •  Yes, Toobin hasn't been very astute on matters (7+ / 0-)
    Recommended by:
    ardyess, ozsea1, gffish, kaliope, elmo, Smoh, native

    regarding the Supreme Court, although he sure thinks he knows every fucking thing there is to know.

    His book is mostly drivvel (although the thought of that fat bastard Scalia, double-crossed, with an eye twitching and a vein bulging in his forehead, is rather satisfying), and he's gonna eat crow when Roberts' "long game" amounts to nothing, just like he ate crow after massively botching the ACA ruling.

    "Compassion is not weakness, and concern for the unfortunate is not socialism." - HHH

    by Zutroy on Sun Sep 16, 2012 at 09:55:38 PM PDT

  •  This fucking conspiracy theory bullshit (8+ / 0-)

    about Roberts needs to be tossed out with the birtherism and trutherism.

    Roberts didn't want to overturn the law, for a variety of obvious reasons, including the integrity of the court and the actual validity of the law.  Anyone who listened to the oral arguments could tell that he was inclined to agree with the taxation power argument.  

    He'll apply his conservative, corporate-friendly worldview to future cases just like he did to this one.  

    VULTURE/VOUCHER 2012. FUCK YOU, MIDDLE CLASS!

    by GOPGO2H3LL on Sun Sep 16, 2012 at 09:56:01 PM PDT

  •  Please share why you think this (0+ / 0-)
    I think that any super-duper smart political strategist would know that Obama's reelection was made all the more likely by upholding the PPACA.
    Thanks

    "Gentlemen, you can't fight in here! This is the War Room." - President Merkin Muffley

    by Farkletoo on Sun Sep 16, 2012 at 10:04:03 PM PDT

    •  Winning breeds winning. (2+ / 0-)
      Recommended by:
      ozsea1, elmo

      Why do you think it doesn't, if you don't?

      GOP: The Party of Acid rain, Abortion of the American Dream, and Amnesty for Wall Street.

      by Attorney at Arms on Sun Sep 16, 2012 at 10:29:29 PM PDT

      [ Parent ]

      •  I thought you might have something that actually (0+ / 0-)

        supported your statement. That is why I asked.

        Packers 2011, would be the answer to your question.

        "Gentlemen, you can't fight in here! This is the War Room." - President Merkin Muffley

        by Farkletoo on Sun Sep 16, 2012 at 10:46:01 PM PDT

        [ Parent ]

        •  Well, also. (0+ / 0-)

          I think in the diary, I stated some of the reasons. I am not saying that it won't wind up the way Toobin says. I'm saying they could not have planned it that way, and if they did it's reckless and ripe for exploitation.

          If by "Packers 2011" you meant that they lost in the playoffs after winning in the regular season, I would still rather be the 13-3 team going into the playoffs than the 9-6 wildcard that scraped in.

          I think we would be hearing a lot about how Obama passed an unconstitutional "government takeover" of health care and we need more conservative justices to stop this kind of thing. Romney could still have ruined it for them by being such a bad candidate, but ...

          Anyway, I'm not making the extraordinary claim; Toobin is. And unless and until there is a radical change of course in commerce clause jurisprudence, his claim remains untested.

          GOP: The Party of Acid rain, Abortion of the American Dream, and Amnesty for Wall Street.

          by Attorney at Arms on Mon Sep 17, 2012 at 08:47:04 AM PDT

          [ Parent ]

    •  Sorry for horning in (6+ / 0-)
      Recommended by:
      kaliope, elmo, Smoh, Brian A, Farkletoo, native

      We had quite a lively discussion about this very issue in my neck of the woods and although reasonable people can disagree, a couple of arguments have me leaning toward agreeing.

      First, it was a signature piece of legislation that stands out among his other noteworthy achievements (killing OBL, the auto-bailout, etc). Were the Court to find it unconstitutional, it would tarnish this list of first term achievements.

      Second, much of the insurance and health care industry support the premise of the legislation. They are powerful lobbying forces both in Washington and in state capitols across the nation. Forcing Romney to campaign on a pledge to repeal the law helps re-elect Obama (ironic that a version of his own health care law is working against him in this election).

  •  Even simpler: he found out the Insurance Co's (8+ / 0-)

    wanted and needed the mandate and so found a way to support it.

  •  Don;t expect Scalia to abide by his precedent, let (3+ / 0-)
    Recommended by:
    Clem Yeobright, Nowhere Man, native

    alone anything written by anyone else.  ACA dissent itself shows that.  Same with Kenedy.

    OTOH, I do think Roberts values his own opinions highly, both personal and judicial, and so thinks it matters what he wrote and he may well have thought he was laying little 'bombs' for the future.

    OTOOH, it doesn't matter a wit if Roberts thinks that.  His  commerce clause 'bombs' are contra far longer and more presitgiously authored precedent, so future liberal justices will treat it with the wieght it deserves as nothing but a minority view- very, very little.

    OTOOOH :), if Mr.Moneybags and Voucherboy pull off a miracle, then it might matter as window-dressing for the RW usurptation that would follow.

  •  Your summation is eloquent and correct (6+ / 0-)
    Recommended by:
    ozsea1, kaliope, elmo, Smoh, Nowhere Man, native

    From Bush v. Gore through Citizens United the Court has frittered away what was once a vast ocean of respect, goodwill, and perceived objective legitimacy. Facing institutional irrelevancy, the Chief wisely chose not to be the guy who killed the Court.

    Toobin makes the all-to-common mistake of starting with a conclusion then contriving an argument to support it. That is optimal when litigating because you are trying to convince a jury to reach your conclusion from some facts. He is trying to argue a case instead of explicate one.

  •  My preorder of the book arrives tomorrow. (1+ / 0-)
    Recommended by:
    Clem Yeobright

    I trust Politico's opinion on absolutely nothing.

    And I like TPM quite a lot, but they're working off leaked excepts; leaked to Politico that TPM got how?

    ACA is too important to top sheet.  I prefer to see Toobin's full analysis before I jump to conclusions.

    That's just me though.

    © grover


    So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

    by grover on Sun Sep 16, 2012 at 11:42:07 PM PDT

    •  Btw, I've always thought your last couple of (2+ / 0-)
      Recommended by:
      Clem Yeobright, Smoh

      Sentences was the case for Roberts.  So we may end up agreeing.

      I'd just like to actually read the book before forming conclusions.

      :)

      © grover


      So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

      by grover on Sun Sep 16, 2012 at 11:46:10 PM PDT

      [ Parent ]

  •  I don't understand the difference. (1+ / 0-)
    Recommended by:
    Clem Yeobright

    You're saying he decided to preserve the legitimacy of the Court so he could continue his long term pro-corporate agenda without the scorn of the public that would have come from striking the law down. Toobin's claim is the same. That he did this to preserve the space to continue his long term conservative efforts without the scrutiny of the public or media. The only difference is Toobin sees significance in The Chief Justice's particular reasoning where you don't. I don't see how Occam would call for us to ignore the Justice's chosen reasoning.

    •  asdf (0+ / 0-)

      His claim, quoted above, is that Roberts not striking down the ACA was an act of "strategic genius" for the conservative movement.

      Only in a world where invading Iraq is an act of strategic genius to combat al qaeda is that even possibly true. The conservative movement's top goal for the last 4 years has been to stop Obamacare.

      The result may be the same (and I doubt he would have done or not done whatever he is supposedly going to do on the cc either way), but the "genius" of it is what I call into question.

      GOP: The Party of Acid rain, Abortion of the American Dream, and Amnesty for Wall Street.

      by Attorney at Arms on Mon Sep 17, 2012 at 08:52:30 AM PDT

      [ Parent ]

  •  Nay, not so. (1+ / 0-)
    Recommended by:
    Clem Yeobright

    Nixon's southern strategy was more nuanced than the blatant racism of today. Ronald Reagan adeptly used dog whistle racism in his campaigns. But, over time, the nuances have given way to raw racist attacks.

    While it is true that conservatives will push and push their urges until they self-destruct, they have shown the ability to start slow and finish fast.

    Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning. -- Clarence Day

    by hestal on Mon Sep 17, 2012 at 03:43:08 AM PDT

  •  Legimacy ... of who? (0+ / 0-)
    He knew that striking down the ACA would destroy what little legitimacy the court had left.
    I almost agree with you. I think he felt that striking down the ACA would destroy what little legitimacy Roberts himself had left.

    As I'd guess he saw it, his reputation for the ages was on the line. How did he want to be remembered? At the head of the train, or standing on the tracks trying to stop it?

    The way he played it, he's in the history books, and Bob's your uncle.

  •  I think it may also be possible (1+ / 0-)
    Recommended by:
    native

    that the Chief Justice realized what implications overturning the ACA would have on human beings in this country: people with pre-existing conditions, babies born with birth defects, etc. Maybe he realized, as we all do, that a Republican House would block any efforts to replace the ACA with anything else.

    He's a conservative judicial activist, sure, but maybe he's not a completely heartless bastard (unlike Scalia).

  •  Almost all of Roberts's opinion (1+ / 0-)
    Recommended by:
    native

    was a single opinion joined by no one else.  The four other conservatives on the court were looking to make a political statement against the President plain and simple.  Because if they really wanted to limit the Commerce Clause and bring back Lochner, they would have joined him and made his opinion binding precedent.  They didn't do so.  Not one part of it.  

    Check out my new blog: http://socalliberal.wordpress.com/

    by SoCalLiberal on Mon Sep 17, 2012 at 06:50:55 AM PDT

  •  "The Individual Mandate is In Grave Danger" (0+ / 0-)

    Yeah this guy is full of shiit, he even got the crucial swing justice wrong...

    saying if Kennedy cannot find a limiting principle then the ACA is dead.

    hell, Ann Coulter had more words of wisdom on the ACA... she said on This Week (paraphraising) ...I am not going to make a judgement on the outcome, because I have been wrong about what the Supreme Court will do in the past...

    someimes the best thing is to not insert your dumb and wrong opinion into a debate.

    •  Right. (0+ / 0-)

      I mean, only someone trying to dramatize the process and justify his reporting would really believe that an oral argument could make such a difference. In a case where the panel doesn't really care or understand what it's looking at and you can really put things in a neat little package that they like, it can matter.

      But this case was always going to be decided by the justices in their chambers over a long period of time because it was so important. It is extremely unlikely that they were going to change their mind in the short amount of time during the oral arguments.

      But Toobin is a process stroker. He wants to make it all sound so romantic and important. He would be the writer for a Supreme Court version of The West Wing.

      But as you pointed out, he didn't even know that Kennedy wasn't the swing vote and that he was going to go along with Scalia. Now granted most people thought that, but I'm not paid to know these things.

      Now he's repeating what some right wing clerks told him, I believe, in order to put lipstick on the pig of their stunning defeat.

      GOP: The Party of Acid rain, Abortion of the American Dream, and Amnesty for Wall Street.

      by Attorney at Arms on Mon Sep 17, 2012 at 08:56:48 AM PDT

      [ Parent ]

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