Associated Press
I was tempted the other day to pull together the most over-the-top hysterics surrounding Supreme Court Chief Justice John Roberts and his ruling on the Affordable Care Act, but I quickly gave up. The task was simply too daunting -- the right's apoplexy was excessive to the point of comedy.
That said, some of the more "cringe worthy" reactions included talk of Roberts being a "traitor" and a "coward" who should be, quite literally, impeached. Several conservatives targeted the Chief Justice personally, questioning his fitness due to Roberts' epilepsy medication. The conspiracy theories were fun, too.
But I was especially impressed with a column from Washington Post columnist Marc Thiessen, a former Bush speechwriter, who complained, among other things, about Roberts not relying on "a philosophy of judicial restraint."
I wonder how Thiessen defines the phrase. In this case, Roberts followed precedent and decided not to undo a major piece of domestic legislation approved by the executive branch and majorities in both chambers of Congress*. Nearly every legal expert in the country assumed this case was something of a no-brainer, and Roberts chose not to take a radical path. Isn't that what "judicial restraint" is all about?
Adam Serwer had a good piece yesterday on the right's misguided cries about Roberts, considering the hysterics in the larger context.
Conservatives want their judges to consider themselves card-carrying members of the conservative movement, and at the same time they want those judges' rulings, when handed down, to be treated with unquestionable legitimacy even by those who disagree with the decisions. When those judges diverge from the goals of the movement, they are pilloried as though they were heretical senators or members of Congress, conservative anguish only magnified by the knowledge that the infidels cannot be knocked back in line by a competitive primary.
Having excoriated liberals for calling the court partisan, conservatives are now gnashing their teeth because the court failed to be as partisan as they wanted. That makes the complaints about politics supposedly driving Roberts' decision ring hollow. They wanted politics to drive the decision. They just wanted it to go their way.
Well said. It's a bit like every partisan ideologue decrying every court ruling they don't like as "judicial activism" -- it's a hollow complaint.
We've reached the point at which a very conservative justice is a traitorous coward because he demonstrated judicial restraint, honored precedent, and had the audacity to disappoint conservative activists who want justices to serve as Republican super-legislators. Our system of government simply isn't supposed to work this way, and thankfully, last week, it didn't.
* corrected
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When I hear them going off , I have to wonder what part of judge and impartial don't they get .
Unfortunately for last last half century or more it has been more about loading the bench with "your kind"on both sides fully well knowing that invariably these 9 individuals will make the law of the land and not the people elected to do so .
They would have been rejoicing if it had gone the other way and the Dems would more likely than not stoically accepted it.
I have been hanging out recently on PolicyMic...and while I do NOT agree with the author of the piece I have linked here; he is a thoughtful writer and not given to hysterical, over-the-top, frothing at the mouth. This is a serious possibility and one I had not previously thought about: http://www.policymic.com/articles/10598/john-roberts-just-helped-romney-repeal-obamacare
It has to do with that 'impartial' thing. It isn't that they don't understand 'impartial'; it's just that they flatly reject it. Every aspect of life, not just politics and economics, but the law, religion. science, everything, is seen by them only through a partisan, lens. Everything must conform to Party ideology; what does not conform is rejected in the most dualistic terms, as evil and Satanic. A movement in which ideology strictly dictates all aspects of everything, and deviation from that ideology is damned, is a movement that has become totalitarian.
And that's the kind of movement the GOP has become in the last two years.
It's become a totalitarian Dark Age Movement.
Republicans think 'fair' means 'we win.' Anything else is unfair.
Excuse me. I thought the Supreme Court's function was to say "yes" or "no" and why... not to rewrite the law.
Which is what the Supreme Court did: they said "yes" and why they said yes. You just didn't like the answer. And you're excused.
Well then, looks like your unbroken record of thinking things that are completely wrong is still perfect.
Over the last hundred and fifty years, the Supreme Court has developed a number of principles that essentially boil down to a general rule that the Court should do everything possible to avoid striking down a statute as unconstiutional. The Court has made it clear that it does this precisely because the temptation for unelected judges to use the Constitution to substitute their own policy judgments for those the "political branches" who are answerable to the voters is dangerous to democracy.
Roberts spend most of the first part of his opinion discussing these principles.
One of them is that if a statute can be interpreted in two ways that are both more or less sane, the interpretation that makes the law constitutional is favored over the one that would make it unconstitutional (yes, Marbury v. Madison, has been more or less explicitly overruled to that extent.) Another is that if the Court can find a way to save most of a statute by only striking part of it, it is supposed to do so. The exception is that they don't do that if what's left would completely defeat the manifest intent of Congress.
These rules were developed precisely because whenever the Court has strayed from them, as it did during the Lochner era, its own public legitimacy, which is the source of its power, has been undermined.
The dissenters' contention that a single provision of a comprehensive overhaul of the nation's health care funding system, the mandate, was so critical to the law that all of it, even parts that had nothing whatsoever to do with health insurance markets, had to fall was precisely the kind of substitution of judicial policy judgment for the judgments of the elected branches that we saw during Lochner.
Roberts evidently decided, for once, to honor these principles because he came to see was that the brazenly political judicial activism of Bush v. Gore and Citizens United had drawn down the Court's legitimacy account with the public to the point where striking down ACA would have put the Court deep into the red. That would have undermined his ability to do what he's been doing--systematically hollowing out the entire body of post-New Deal precedent under the guise of affirming them.
I'm glad it was affirmed. But reading Roberts' Commerce Clause opinion in connection with the dissenters' opinion, it's quite clear that that there are now five votes on this Court for taking down the entire structure of twentieth century jurisprudence. The difference between Roberts and the other four is merely tactical: the dissenters want to do it like a truckload of explosives while Roberts wants them to do it like a hive of termites. Unlike the others, Roberts' saw that overturning ACA would bring unwelcome public scrutiny to what his Court's been up since he was confirmed. This decision buys him space to continue that project, one little hollowed out 2x4 at a time.
Just to make sure everyone knows, the vote to consider Bush v Gore as un-Constitutional was 7-2. That may be news for some here.
http://www.oyez.org/cases/2000-2009/2000/2000_00_949/
Meanwhile if think the Court had credibility problems then, you ain't seen nothing yet. Not only did Roberts pass a different version of the law, it appears he did it in response to political pressure from the White House. Currently he looks like a self-aggrandizing toady.
No. Wrong again. Seven justices said counties couldn't use different standards to evaluate voter intent under the Equal Protection Clause. That part was not especially surprising or controversial.
Five justices, however--Republican appointees all--said that they knew what a Florida state law meant, and how it should be interpreted, better than the Florida Supreme Court and that under that state law--which, apparently somehow superseded an federal or national interest in seeing all the votes counted--the recount had to stop by December 12, notwithstanding that it was the Court's own stay that had kept it from being completed by that deadline.
GOP Healthcare " Replacement Plan ' !
First dig a really big ditch in every State in the Union and then :
Shove all poor people who are ill and diseased with no healthcare insurance in to a ditch and let them die.
Shove all children who are ill and diseased with no health care insurance in a ditch and let them die.
Shove all old people who are ill and diseased with no health care insurance in a ditch and let them die.
Shove all workers who are ill and diseased with no health care insurance in a ditch and let them die.
Shove all foreigners who are ill and diseased with no health care insurance in a ditch and let them die.
Then declare a National Day of Thanks be to God that he let all of the useless eaters who were ill and diseased ( and not rich, fat, gun-toting, racist, homophobic, women hating, religious fanatic, white guys and their oppressed families ) die.
Judicial restraint? Or for that matter Legislative or Executive restraint? Regardless of what "principles", "rules" or "intent" there may be, SCOTUS can pretty much do what they wish in the realm of accept, reject or modify (make) law brought for review before the Court, as Congress can filibuster majority intent or selectively hold anyone in the Executive branch for contempt based on prosecution story and the Executive branch can practice limited prosecution of certain law or deny rights via selective prosecution by processing the innocent. What's to stop them in the first place?
So Steve, you're going to tell me I'm wrong while actually agreeing with me? Hmmm. That should cause some concern, I would think.
Steve- I assume you are a lawyer- if not you do have a good grasp of S. Ct- jurisprudence- that said the base decision in Gore v Bush- was 7-2- the remedy decision was 5-4- also remember it was the Fla. S. Ct. that ignored the trial court finding of facts and did a complete de novo review as opposed to normal standards-
all that said- CJ Roberts- does appear to have been the least political of the group- I agree that the dissenters (which opinion reads like a majority opinion) wanted to take down the entire statute- whereas the concurring opinion (which reads like a dissenting opinion)- wanted to affirm just as a matter of policy regardless of any constitutionalissues- CJ Roberts searched for a reason to affirm and I agree it is could judicial policy to defer to the legislature and find grounds to affirm- that said going with the tax power may have real unintended consequences- CJ Roberts energy tax example in his opinion is troublesome and would suggest that there are no limits on the use of the tax power to encourage behaviors that congress deems appropriate- this case may not replace Marbuy v Madison as the first case that first year students consider in con law- but likely will be come the second case
Shooter242 - "Excuse me. I thought the Supreme Court's function was to say "yes" or "no" and why... not to rewrite the law."
Two wrong points. The Supreme Court doesn't write out all those words in majority and dissent to create jobs for typists; they, in many cases, make more law than the Congress does... especially with a cock-blocking Congress like this one. They make new law and rewrite laws with every precedent. The second one is the assertion that you thought; no proof of that yet.
Interesting.
If a decision is handed down that you agree with it is just ' Judicial Review ' but if a decision is handed down that you HATE irrationally it is ' Rewriting Law ' ...
Cheese with your whine ?
Sorry, but the ACA was written, and sold as a mandate to buy insurance, not a tax on inactivity. It's bad enough the Obama administration lied about the bill, but having the Chief Justice reword the "intention" is actually putting words into Congress's mouth.
Why don't we revisit Roe v Wade and see if Roberts would like to change the letter of that law too, hmmmm?
But wait, I thought that the ACA was some socialism, communist, marxist plot to take over the world put forth by a lying black man born in kenya!
And for the Supreme Court to rule the way that it did?!!! What in the heck was Roberts THINKING?!!!!!!
Now shooter is REALLY mad ad that lying black man born in kenya AND the Supreme Court! I love it!
Methinks you're a racist.
The Urban Dictionary
http://www.urbandictionary.com/define.php?term=troll
Troll :
1a. Noun
One who posts a deliberately provocative message to a newsgroup or message board with the intention of causing maximum disruption and argument.
1b. Noun
A person who, on a message forum of some type, attacks and flames other members of the forum for any of a number of reasons such as rank, previous disagreements, sex, status, ect.
A troll usually flames threads without staying on topic, unlike a "Flamer" who flames a thread because he/she disagrees with the content of the thread.
1c. Noun
A member of an internet forum who continually harangues and harasses others. Someone with nothing worthwhile to add to a certain conversation, but rather continually threadjacks or changes the subject, as well as thinks every member of the forum is talking about them and only them. Trolls often go by multiple names to circumvent getting banned.
@shooter: me knows YOU are a racist.
How long will it be before Limbaugh and Trump demand to see Justice Robert's birth certificate?But when he show's it, they'll deny it's real.
Actually I heard they are going to ask him to join them in a contest to see who can pee the greatest distance !!
This is nothing more than a stunt in an endless string of stunts, designed to distract an easily distracted populace from the real problems that have been metastasizing for decades. Problems like our infrastructure, our education system, and endless war.
Thank you Day
We have no choices , only owners.
Sorry bud, but you're just about out of other people's money.
Yeah! Other people's money! I mean I have mine and screw everybody else! I mean, I use services like roads, the police, the fire department, traffic lights, the internet, but HEY I don't want to pay for all of that because somewhere, someone is not paying THEIR fair share!
It is absolutely great to be a selfish self centered person! God bless America and no place else!
The only people running out of money is the lower and middle socioeconomic classes.
The right is about distributing wealth upward. And they've just about got it all.
The right IS about big government. Just so they can scarf up the remaining wealth for the already wealthy.
Shooter242
Sorry bud, but you're just about out of other people's money
Is that what they called it in the constitution that you people despise and lie about all the time? Last I checked it was the peoples government and the peoples money , who are these OTHER PEOPLE ? The anti America crowd?
The people's money? Then every thing you own belongs to the people. When are you going to invite us over so we the people can root through your possessions and decide what you really need and what you don't.
As for Donna, rich people pay all their share and part of yours too. Find a rich person and thank them.
I can't, because like you Shooter, I am in my bunker wearing my tinfoil hat trying to save myself from the gub'ment and that lying black man from kenya!
Sure will. If you thank a poor person for making that rich person wealthy!
Our conservative brethren are so involved in working the refs, they forget life is not a Vince Lombardi game!
I salute John Roberts for being an American who deserves his station in life for this one moment of Judicial Restraint! While the rest of us were living out our lives these past two decades, the conservative movement has been successfully running state and local candidates, packing the courts with echo chamber hacks, and passing state legislation restricting the vote.
The apoplexy we are witnessing reflects a deep disappointment among conservatives who erroneously believe their America is being attacked by menacing threat. The idiotic partisans to our Right can't realize that in essence the threat they claim is attacking America is their fellow Americans!
I guess with his decision, John Roberts has just joined the rest of us in the eyes of our conservative elites - not worthy of their American democracy! -Kevo
I'm going to venture a theory here about Justice John Roberts & his decision: he arrived at his position for moral reasons - and that's something many people, especially those on the far right - haven't factored in to their various responses to the ACA. Extending insured access to our health care system to "low income, hourly workers" is for many Americans first and foremost a moral issue, something the far right has trouble with because of their views of President Obama. But for me and many other Americans, it is not moral that being "economically unsuccessful" carries with it the penalty of no insured access to health care. And I think Justice Roberts got that - and that's why he's so misunderstood by the far right who may see themselves as theologically orthodox, but turn a blinded eye to matters of social justice and how Darwinian the health insurance market can be to those who are weak, sick, powerless and hourly waged. My assertion is that Justice Roberts is a moral man and issued an opinion based on morality more than 'free market' economics.
John- not a bad theory- and likely some truth to it- challenge is that justice is supposed to be blind- and what is moral today may not be moral tomorrow- so the result that the ACA goes forward (and although not a supporter of the ACA- in a sense at least it is a start of trying to do something) may a good thing- it needs to be done on solid constitutional jurisprudence- and the tax power is a real reach-
Just because the country just narrowly dodged the bullet aimed right between the eyes doesn't mean there aren't more bullets on the way. Roberts was ready to join the others in taking down the 20th century until the very last minute. They were ready to ignore precedent and ignore that the responsibility of setting policy is for the legislative and executive branches. And they were willing to ignore the peril the lives of 50,000,000 people to get their way. Nothing has changed. Four are still willing to do it. And Roberts can not be counted on to stop them.
Want a Supreme Court nightmare? Imagine President Romney. There's your nightmare.
Obama must win and everybody must do everything they can to make it so.
I'm really tired of the polarized lenses.. I find it difficult to believe that the chief justice did not fail utterly. Unfortunately, even with the huge surprise the Supreme court still reeks of money-influence which is deplorable. It seems that the tipping point has already come and gone. I agree that the vote is the key but there are so many who do not vote with the collective interest of the people in mind and instead vote for sociopaths without humanity. How do you change greed and power lust?
Justice Roberts played a brilliant hand -- on the one hand, his decision to uphold the ACA gave the illusory perception that the SCOTUS really isn't biased to the far right (and in the process restoring the public's faith in SCOTUS); and on the other hand, the states' opt-out provision panders to the red states (26 of them, and a couple of blue states) that brought the Supreme Court action in the first place. So, why all the hoopla, Republicans? This seems more a win for the conversatives, than the "Muslim Incognegro." Is the Republican Party's hatred for POTUS so extreme that they can't even realize they won . . . or have they? We Americans know right from wrong without the GOP invoking GOD, fear and personal prejudices to promote their self-serving, aggrandizing agenda. More of us need to wake up, educate ourselves and, above all, use common sense and exercise a sense of morality. All of the governors who choose to opt out in the name of ideology and at the detriment of the human beings they swore to serve, should really rethink their position if they hope to be re-elected.
Thiessen's article crystallizes an issue I've been watching for years. The reason conservatives always complain that liberal decisions are activist and politically-driven is that our right-wing neighbors apparently believe that's what judges are supposed to be. Ann Coulter made the point in 2005, when complaining about Roberts' nomination; Rush Limbaugh made the point last week. And now Thiessen, of AEI. What Thiessen overlooks is, to me, an obvious consideration: When one rises to the level of being a Supreme Court nominee, it is a reasonable proposition that he or she is good at their job. And, sometimes, for judges, being good at one's job means putting personal sentiments in the attic and leaving them to gather dust. Absent from right-wing tantrums about the decision is the possibility that Chief Justice Roberts simply did the right thing as he understood law and precedent. His "betrayal", as such, is that he is not a poodle to Republican political demands. It's a very telling tantrum, as more and more conservatives seem to be voicing opinions that require judges to be poodles.
I'm amazed at how quickly the right spun around and went after Roberts on such a viciously personal level. And not just the supposedly fringy bloggers: everyone from the furthest edge to the center of the "conservative" movement has gotten thoroughly ugly, and that as their first response.
It's not the ugliness per se that has gotten my attention. After all, many leftists have expressed a very personal animus against GWB and the members of his administration;but those have always been people on the edges of progressivism and also of the Democratic Party. Not so among "conservatives". There are no adults on that side any more, apparently. Not exactly news, but it is kind of astonishing how quickly they turned on someone who up until now has been seen as firmly in their camp.
I wonder whether this is a temporary thing, or a permanent banishment. If the latter, how will Roberts rule in the future if he has no home any longer among his own kind? And if the next time he rules with the other right-wingers on the Court, will that be enough to rehabilitate him in their eyes?