Wednesday, July 24, 2019 00:36

Yet another further, different ObamaCare SCOTUS post

– Wiccapundit

Having now read more teeth-gnashing opinions from conservative pundits on how the Right really got its clock cleaned with the Sebelius decision, I have a few additional thoughts.

First, the idea that Chief Justice Roberts ruled as he did in order to curry favor with Left-leaning opinion-makers and the Georgetown cocktail party set seems really feeble.  If Roberts was truly a “stealth” liberal, why did he rule the way he did in Citizens United?  The Left’s equivalent of Roe v. Wade would have seemed to be a worthy candidate for a decision to obtain for Roberts the approbation of the Left.   Why did he wait until now to reveal his colors?  Anyone espousing this view needs to provide more support for it than simply claiming that Roberts is a “traitor.”

Second, if this is decision such a disaster for the Right and such a huge win for the Left, why were the liberals on the Court –  particularly Ginsburg – so peeved by the decision?  They issued a concurring opinion roundly criticizing the Chief Justice’s reasoning, but nonetheless had to swallow their distaste and sign on to Roberts’ opinion in order to obtain the result they so clearly desired – the upholding of the ACA.

What this appears to me is a fixation among conservatives with the outcome at the expense of the reasoning.  Roe v. Wade is roundly (and rightly) criticized for slipshod legal reasoning in Justice Blackmun’s opinion.  If the result of the case – overturning states’ abortion laws – had been done by an act of Congress, conservatives would still be unhappy, but not as unhappy has having a specious “right” created out of thin air where none exists under the Constitution.  It is more important in my opinion to focus on how the Court reached its result, rather than simply foam at the mouth about how bad the result was.  Really, does any conservative want to be seen as the same kind of mewling, whiny, punk-ass bitch as the Wisconsin Weeping Boy? (“This was the end of democracy. [sniff] The end of the USA as we know it just happened. [sniff]”).  To those on the Right, I say: MAN UP!

Here, conservatives are unhappy that ObamaCare has been ruled constitutional and direct their ire at the Court for allowing it to stand.  Forget that it took one vote – Republican Olympia Snowe’s – to send the bill out of Senate committee to a vote.  Forget that it took arm-twisting and bribes by the President to get it passed by the Senate, which Republicans were unable to prevent.  Forget that it took parliamentary shenanagins to get the monstrosity passed by both houses of Congress.  Conservatives failed politically, and were looking to the Supremes to save them – never a safe bet (See, e.g., McConnell v. FEC, the Supreme Court decision that initially upheld the McCain-Feingold assault on free speech.  George W. Bush signed that POS law assuming that the Supremes would overrule it, thus allowing him to appear to be for it when he was really against it.  Well played, W. /s).

Fix the problem with the ballot box.


(For a more thoughtful analysis in concert with my view, read this: The Chief Justice Done Good.)


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15 Responses to “Yet another further, different ObamaCare SCOTUS post”

  1. Erinyes says:

    It sounds like you, unlike most of the teeth-gnashing conservatives, actually READ Roberts’ opinion. Are you an attorney, perchance?

  2. FX Phillips says:

    Thanks for the link Wiccapundit. Now that I know I am discussing this with a ringer(which I suspected by your citations) I will try and bring what passes for an “A” game.

    There is nothing substantive in this post just a tracer so that I we can get preliminaries out of the way.

    The promised response is forthcoming. Unfortunately I got your message after I have already consumed alcoholic beverages. While their consumption improves my tennis game they don’t do much for my intellectual coherency.

    • Wiccapundit says:

      Welcome, FX.

      Margaritas have rendered my articulationableness substandard for the moment, as well. 🙂

      BTW, I have been reading some further commentary that is leading me to lean more in the direction of your analysis. It pains me to think that a jurist of that caliber could be so crassly political.

      As Ambrose Bierce noted: “Can such things be?”

  3. Erinyes says:

    Okay, I’m a contractor, not an attorney. After reading through your and FX Phillips’ commentary, I am getting a little cross-eyed BUT my take on it was Roberts screwed the Left with his ruling. That’s been my take from the get. I’m getting that you and Phillips concur. Is that the political crassness of which you speak?

    While I understand that a jurist is supposed to be fair and imbalanced, I also am amused by the amount of Rightwingers who are calling Roberts a traitor. A traitor to his ideals, perhaps, but also, in good conscience, what else could he do besides rule that its a tax? If it quacks like a duck…

    • Wiccapundit says:

      I’m still struggling with trying to suss out what Roberts actually did and more importantly, why. I don’t think he ruled as he did so he could be loved and fawned over by the liberal chattering class. If he was mindful of public perception, I think he was concerned about how the Court would be perceived as ruling on a highly political case.

      But really, how many SCOTUS cases AREN’T highly political? (Other than obscure rulings on arcane areas of the law that few pay attention to.) As one commentator noted, if his intent was to protect the Court’s reputation as not being political in its rulings, he failed miserably, because both the Left and the Right think he ruled as he did for overtly political reasons. I’m going to have to chew on this one a bit longer.

    • FX Phillips says:

      I am getting a little cross-eyed BUT my take on it was Roberts screwed the Left with his ruling. That’s been my take from the get. I’m getting that you and Phillips concur.

      No Sir, my position is clearly Roberts gave away the store. Lock, Stock and barrel. There is no silver lining and there is no valid precedent in circumscribing the commerce clause jurisprudence plus he gave them a shiny new species of tax that appears nowhere in the text of the constitution. Mark Levin has a really good piece on this. starting at about 6:50.

      I also am amused by the amount of Rightwingers who are calling Roberts a traitor. A traitor to his ideals, perhaps, but also, in good conscience, what else could he do besides rule that its a tax? If it quacks like a duck…

      If there was some ambiguity in the statute I’d say you have a point. With relation to the mandate the word tax is not used. It is called a penalty. An exaction for not following the law. If congress meant it as a tax they would have wrote it as such. They know the difference. You can be penalized for not paying a tax but you can’t be taxed for not paying a penalty. They are not interchangeable.

      My ire at Roberts is that in order to save the law he stepped way beyond his authority. If he redefined a penalty as a tax he re-wrote the statute plain and simple. He has no right to do that and actually have it be legitimate. He also re-wrote this “law” by inserting a severablity clause where none was extant. Without which the part that SCOTUS struck down would have annulled the entire statute.

      As it turns out the duck was a turkey.

  4. FX Phillips says:

    These comments are based on your last comment at CM’s blog.

    I have simply wanted those who claim Roberts was a stealth liberal to provide more solid evidence that he ruled the way he did because of his concern for his reputation. If he really did so, we are in for decades of trouble.

    In substance the first part here is correct. We only have educated guesses and a second hand report from a CBS reporter(Crawford) who as I understand it was married to NDWSP operative and pollster Stan Greenberg. Unless Roberts confesses or there is authenticated audio tape all we have is conjecture. But the circumstantial evidence and expert is piling up in that direction. The excerpt from Volokh Conspiracy of Crawfords article is highly suggestive.

    The folly is that by doing what he did for whatever reason he did it he brought on the very attack he sought to avoid. At least if he had ruled with the dissenters he was on a sounder legal footing. Re writing legislation (at least to us laymen) would seem to be an ethical no-no. To then rule it constitutional is to be a judge in your own case. I thought only Elena Kagan(sorry sheap shot, I know she recused in US v Arizona was lacking in such scruple.

    I agree with your second premise as well. And in this particular article Matthew Franck over at NRO blog Bench Memos makes that very argument:

    The editors of the Wall Street Journal at least do Roberts the honor of directly engaging his arguments on the taxing-power issue, and give the back of their hand to the “statesman” or “John Roberts-as-Daniel-Webster school.” But then they still stumble into the fallacy of the false dilemma. Because they are not persuaded by Roberts’ reading of the statute or his understanding of the power to tax, they are unable to credit the possibility that he is persuaded by the arguments he made in his opinion.

    This would indicate that Roberts either may not be as conservative as we wish or that he can be hoodwinked by what the consensus prior to the decision was that the tax argument was spurious and lacked merit as it was an obvious bait and switch(BTW isn’t that how they justified Helvering). While these are intended as a defense they do not assuage conservative/originalist fears that he is “growing” in office.

    In my experience, Citizens United has been as much of a hot-button for the Left as Roe v. Wade is for the Right. Citizens United may not have been on the radar of the public as much as Sebelius, but it’s been percolating pretty well.

    I don’t doubt your word on this but both those rulings are much narrower in scope than Sebelius This ruling for all intents and purposes you can’t escape even if you are a victim of Roe

    Roberts has been CJ for seven years. Given his life tenure, I would have thought he would have shown his liberal stripes sooner, if he was so inclined.

    Every journey has it’s starting point. Remember also he sided with the majority in United States v Arizona Which for all intents and purposes allows the executive to ignore the will of congress and be derelict in it’s duty and leaves the states no recourse to protect their citizens.

    Wickard v. Filburn may not have been explicitly rebuked in Sebelius, but we can hardly expect the edifice of liberal (and Liberal) interpretation of the Constitution to be corrected overnight, or in one fell swoop.

    But we could have had a real precedent that would have had to have been followed if had voted with the dissenters. But even in dissent it would not have done much as this article by Hadley Arkes points out.

    Even as modest as it would have been it would have tangible. But even with that modicum of success we both know that the next time the makeup of the court becomes reliably statist(if it hasn’t already) that limitation along with all the rest will swept away under the false rubric of the”living, breathing constitution”. A tangible result couldn’t be dismissed
    so summarily as they can now by sneering “mere dicta”

    It’s funny how we accept that it takes time to whittle away at liberal penumbras and emendations while liberal majorities accept no such constraint (see Roper and it’s follow up piece Miller) using flimsy and nebulous standards like “evolving standards of decency” to overrule years of practice and precedent. If it’s not supported by the constitution it needs to be overturned they have no qualms about promoting extra constitutional jurisprudence we should not have them in defense.

    Dicta is dicta, and it is what it is. Roberts’ dicta in Sebelius on the Commerce Clause isn’t without value, however. See, e.g., Footnote Four to U.S. v. Carolene Products. That little landmine first established the “rational basis test” for Federal legislation, which is absurdly easy for Congress to meet. Seventy-five years on from that decision, that dicta has had a wide-ranging and damaging effect on our constitutional jurisprudence. And they still teach that case in law school so far as I know.

    But using dicta for justification, like reference to foreign law for justification as to why you are not following the constitution, is as close to being arbitrary as you can get. Scalia years ago obliterated that notion and that any appeal to foreign law was strictly an arbitrary rationalization of why you are not following the law as written. Dicta would seem to be in the same boat as you can sight any rationale and give it a patina of officiousness. From what I understand this is what O’Conner did in Grutter. I may be wrong but I really have lost my zeal to track it down. Suffice it to say dicta has no real weight until it is incorporated in a decision of 5 justices.

    My main concern is that conservatives not fall prey to (Insert) Derangement Syndrome, and begin foaming at the mouth like the Wisconsin Weeping Man after the Walker recall. We are, after all, tougher than that – we have always had to fight uphill against the embedded Leftism of the media, the academy, and the entertainment industry.

    Unlike the Wisconsin weeping man’s fear of the death of democracy in the middle of an election to undo a democratic result ,real and lasting harm has been done to the rule of law. From the process to the result precedent has been set and none appears to be good. We will fight on in the avenue left to us. Say we are successful in displacing Obama and an NDSWP led senate judging from the news the last couple of days from the Romney camp and establishment toad Mitch McConell not o mention the perpetually tanned and spineless John Boehner do you think that they will engage in the type of boldness it will take to repeal this POS?

    If John Roberts folded under media pressure with a lifetime appointment what do you think the chance are these testicularly challenged goofs are going to do once the first cry of “raaaaacist” is hurled

    I am well aware the avatars of the media, the culture and the academy are against us. The population has been dumbed down to be docile supplicants. It makes it doubly hard when those who are supposed to be leaders essentially accept the statist premise and just promise to manage it better. There are no true plans to roll any of this back. It is a long march to win back this country. You are correct when you say it is a long battle. This election coming up is important but it will take many more elections and holding those who screw up to account and defenestrate them before we can even think about getting back to good.

    John Roberts job was to hold the line. For whatever reason he did not. Then he acted in a high handed and arrogant manner besides as if it were not his job to reign in a lawless congress and bad faith executive. Even with a proper decision this was going to be difficult. By his blindness he has made it that much more so.

    If you’ve made it this far thank you muchly for use of the soap box. I will be back from time to time to see what’s up.

  5. Sebastian Page says:

    My head hurts.

  6. Sebastian Page says:

    My initial reaction to Roberts ruling has not been so much a series of knee-jerk accusations of selling out. Suspicion was there, of course…this is unavoidable in an era of turncoat “conservatives” and RINOs with the gall of masquerading as the authentic article. Although I will be voting for the man, and despite occasional arguments that he is the real deal, I have to confess that Mitt isn’t exactly giving me the warm fuzzies. As mentioned in a previous comment, I think I smell a little McCain in him, but hope I am completely wrong.

    In any case, my problem with the decision has been coming to terms with what exaclty Roberts angle must have been. Many thanks for the link to the AT article, which kind of summarizes conlusions I was starting to piece together myself. I am not prepared to grant Roberts credit as some sort of mastermind for a stealth routing of long term liberal strategy, but I can see that there was far more at issue than simply the rejection of Obamacare prima facie.

    At this point I am in agreement that we have some cause to rejoice, in that we have now removed the ability for liberals to continue abusing the Commerce Clause as a means to impose never-ending subtle tyrannies, that the Obamacare debate will now be reignited rather than allowed to fade more into the background, and that the issue must now be revisted as a massive middle-class tax, despite Obamas double-speak claims to the contrary.

    I cannot deny that I am nontheless displeased, that the Frankenstein which is Obamacare lives, even if only for now. But then, I do not share the optimism of some who seem to think that repeal is a forgone conclusion. I sense that it will be far trickier than that to undo this monster. My question now is, why could the decision have not simultaneously curtailed the abuse of the commerce clause while rejecting Obamacare as it was portrayed to the public (merely a penalty) rather than the justice effectively re-writing it as a tax…an effort which it seems to me is beyond the purview of appointed judges. In other words, while we may have lost some of the political ammunition this generates for the upcoming elections, why couldn’t the decision have simply rejected Obamacare for what it is, and the abuse of the commerce clause? Did it have to be one or the other?

    Okay, I’m bitching. I’ll take what I can get, but I cannot help but think that we have fallen short of what was fully responsible, and more importantly, just.

    • Wiccapundit says:

      My belief is that if Roberts intended to shield the Court from allegations that the decision was a political one, he failed miserably. If struck down, liberals would have howled that the decision was political. Now that it has been upheld, conservatives are howling that the decision was political. Given that the firestorm would come one way or another, why didn’t Roberts just get the decision right to begin with?

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