The Chief Justice's Gambit (Not as bad as we think??)

Rea Clear Politics ^ | June 27,2012 | Sean Trende

[Hojczyk]

But I think if you scratch the surface here, Roberts embarked upon a gambit much like Marshall did 200 years ago. For the results-oriented -- which is to say, most observers on both sides who have been ranting about the Constitution for the past few months -- this is a clear win for the Obama administration, at least in the short term. By removing most legal impediments to the implementation of the law, the odds that the president’s signature legislation will eventually be implemented have risen.

1. The law still has a good chance of not being implemented.

2. Doctrinally, The Federalist Society got everything it wanted.

But judicial conservatives who are not just concerned about the outcome got more than they could have reasonably hoped for. Doctrinally speaking, this case will likely be remembered as a watershed decision for conservatives.

Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers. Right now, liberals are seemingly too busy celebrating their win, and conservatives bemoaning their loss, to realize the significance of this.

3. The chief justice has built up some political capital.

Roberts has basically done what John Marshall did: Insulate the court from criticism of bald partisan bias and infidelity to, as he once put it, calling balls and strikes. He’s earning plaudits from the left. Though the right is grumbling, I suspect they won’t be doing so for long

4. This matters in the long run -- a lot.

All told, it is easier for the conservative wing of the court to make some significant rulings in some other policy areas.

[FredZarguna]

Yes, it will be. But only if you call the flight a cruise. And only if you refuse to pay for the cruise because the cruise involved an airplane.

As kooky as that sounds, it's actually what Roberts' argues in upholding the mandate as a tax, and allowing the Court to rule despite the AIA.

[RipSawyer]

That’s what I am thinking, what did he accomplish that he could not have accomplished and more besides by simply siding with Kennedy and the others who wanted to smash it. The author concludes that had the administration called it a tax to begin with it would certainly have been upheld but I say it certainly should not have been upheld whether they called it a tax or tacks or a silly goose. I simply do not see how anyone can conclude that the federal government has authority under the constitution to take over medicine, let alone force someone to purchase insurance. I am not an attorney but the constitution seems fairly plain to me and I think we have strayed so far from the basics that we are arguing over whether a certain driver should be charged with reckless driving or some lesser charge while forgetting that he was driving a car that he stole in the first place. In my view the vast majority of the actions of the current federal government are not and never were based on a legitimate interpretation of the constitution. A lot of the court decisions I read leave me thinking that yes, I could call myself an Eagle too but I damned sure won’t be able to fly over a river and swoop down to catch a fish with my toes.

[RipSawyer]

If we have no way to stop them other than litigating up to the highest court and hoping then what is to stop them from simply doing as they please anyway? I think we may already be seeing the same or worse attitude than that displayed by Andrew Jackson that the chief justice has made his ruling, now let’s see him enforce it.

[RipSawyer]

I think Kazan meant that democrat presidents make the right pick FOR THEIR PURPOSES. In Obama’s view I am sure that he is pleased with the “wise Latino” and the other disgusting excuse for a human being, they are not likely to let him down in the way that Roberts is letting the conservatives down.

[WOSG]

I dont care whose side they help or hurt, but I do care if the Justices follow the law and Constitution, and Obama’s picks are big fat zeros on that score. They are not ‘the right pick’ under any sensible criteria, and this needs to be pointed out. We fail to call out liberals as much as we should.

[caddie]

Um, the oath the service people take is verbatim the oath that the Supreme Court Justices take. Isn't it?

Obama and Clinton, too. Pelosi, too.

Obviously many people take the oath and don't abide by it.

[NoLibZone]

Yes.

It’s going take a few days to figure out what Roberts has done.

Hoping he is playing 3D Chess against Those playing Checkers.