What Happened to John Roberts?

RUSH: I want to go back to the Grooveyard of Forgotten Favorites. Our archives. By the way, I think this is important. Doesn't mean anything now. It does not have the force power, but the four judges, justices who dissented -- Scalia, Alito, Thomas, Kennedy -- made it plain in their dissent that this was nothing constitutional about this act. They found nothing in it. They plainly said, in their dissent, the whole thing should have been tossed out. You can't have a greater divide than what we had. You've got the four libs, who, it's never even considered that they might change their tune. And the chief justice, who we know now I think is a creature of the Washington establishment, a creature of the notion that government is the center of the universe. It's pretty obvious. But the four justices who dissented, they didn't even want to get into the idiosyncrasies of the majority opinion. They found the whole thing tossable.

RUSH: Now, a lot of court experts are saying that the dissent actually reads like a majority opinion but with criticism of the actual majority tacked on at the last minute. In other words, the dissent is just... Again, this is speculation. These so-called court experts are looking. They are now reading both opinions and they say, "This dissent sounds like it was the majority opinion, like it started out as the majority opinion." And some of these Court Watchers are now saying, "It looks like Roberts was somehow convinced to switch sides along the way."

Ah, this is just gossip. It's interesting for the sake of it. But back in May, there were rumors floating around relevant legal circles that a key vote was taking place and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. And that's all they were. They were just rumors. I don't know who was applying the pressure and don't even know if it's true. It's just gossip. This is the kind of stuff you can expect a lot of in the aftermath. (interruption)

What do you mean, "No"? (interruption) Well, okay. Snerdley reminds me... (interruption) You're talking about Leahy? Senator Leahy went to the floor of the Senate and did... Eh, you might say he threatened Justice Roberts. There were senators that went to the floor. It was unprecedented. There were really intimidating things said. We reported on it this week, in fact. There were intimidating things said about and to Justice Roberts. And I remember the reaction, "Ah, he's not gonna care about that, Rush! Come on, now. He's the chief justice Supreme Court. That stuff happens all the time."

You're gonna be reading about this kind of gossip. You probably will see it intensify as the afternoon and evening wear on that Roberts switched. This is a theory. Remember, now: Everybody, everybody thought the mandate was going down. Everybody did! The media was sure. In fact, the media was writing stories on what a worthless court this was. Roger Simon of Politico. It was really intense. All last week and early in this week, everybody thought it was history. That's why there was utter shock.

By the way, this wasn't the only decision. Are you ready for this? The Supreme Court struck down the Stolen Valor Act today. Do you know what the Stolen Valor Act is? Essentially the Supreme Court just said it's perfectly fine to lie about medals and awards that you receive in combat. "The Supreme Court struck down the Stolen Valor Act on Thursday, saying that the First Amendment defends a person's right to lie -- even if that person is lying about awards and medals won through military service. ...

"In its 6-3 decision, the Supreme Court justices said [today] that as written, the act is too broad and ignores whether the liar is trying to materially gain anything through his or her false statement, which would be more akin to fraud." So, if your neighbor starts running around saying he got the Medal of Freedom, Medal of Honor, the Purple Heart, whatever, it's perfectly fine. He can go make a fake medal and he can hang it around his neck. It's perfectly fine. No problem. Now, if he tries to make money off it...

Well, no. He can still do it. Justices said that only if these liars were trying to profit materially would they have struck down the law. But the First Amendment gives them the total right, the freedom to lie about it. (interruption) I know. You CAN make it up! You can literally go out and you can make it up. Purple Heart, Medal of Freedom, Medal of Honor, whatever. (interruption) See, if you go out... (interruption) I don't know. There might be "hope for Sandusky." It depends. I don't know if they'll legalize pedophilia or not. We'll have to wait and see if it's in the health care bill.

RUSH: When I said "court watchers" earlier, I should have cited it's a blog. The Volokh Conspiracy. There's a blogger who is talking about the pressures that were put on John Roberts to change his vote. They're analyzing this, and through much of the dissent, they've got Scalia referring to "the dissent," and there were notes that Ginsburg was writing the dissent. I remember reading earlier in the week that Justice Ginsburg was writing the dissent. The clear impression from court watchers was that the mandate was struck down.

And now there's a theory that somebody got to John Roberts. I really hate even passing this on. When I say, "Somebody got to John Roberts," one of the guesses is Obama's public assertions that the court was going to marginalize itself and become irrelevant is something people were speculating might have influenced Roberts. Not that somebody threatened him. I don't want anybody putting words in my mouth. It's just going around a blog and it will probably be amplified on as the day goes on.

RUSH: It doesn't matter as to the outcome whether or not Chief Justice Roberts was intimidated and threatened, but it does matter. Finding out conclusively won't change anything, but it will be quite eye-opening for people if it is established that the public intimidation of the chief justice by Obama and senators and so forth resulted in a changed vote. That will de-validate the court in terms of people's respect more than any decision could, whatever it would be.

RUSH: I mentioned earlier the Volokh Conspiracy. It's a blog that circulates in legal circles, and apparently, ladies and gentlemen, a lot of people are doing what you and I are doing. "What in the name of Sam Hill happened here?" It was thought, and nobody knew for sure, but there were tea leaves, and I'm an expert now in the tea business. I know tea leaves, and there were tea leaves out there that the mandate was going down. The White House thought it was going down. The media thought it was going down. And, in fact, the first announcement today was the mandate was ruled unconstitutional. That was the first thing that got reported.

And then it was a few short seconds later that the first "uh-oh" came. Wait a minute, the mandate's unconstitutional, but the whole thing stands because Chief Justice Roberts is calling it a tax? So after the shock wore off, people started trying to figure out what in the heck happened. And all the news networks, even CNN got it right, reported that the mandate was struck down. Fox reported it was struck down. AP reported it struck down. Washington Post reported the mandate was struck down. It was a cruel trick to play on the American people. Mandate struck down, and mere seconds later, "uh-oh."

Now, the Volokh Conspiracy. It's a post by gentleman named David Bernstein. Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion (in particular, he consistently refers to Justice Ginsburg’s opinion as 'The Dissent')." Earlier this week there were stories that Ruth "Buzzi" Ginsburg was writing the dissent. That did leak. And these guys are referencing it here at the Volokh Conspiracy blog, and they say that in his dissent, Scalia consistently refers to Justice Ginsburg's opinion as the dissent.

"Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on Commerce Clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill," which it is doing.

Now, I want to be very careful, 'cause none of this matters in terms of the outcome today. If people found out, if they could prove that Roberts changed his vote because of intimidation, it won't change anything about this outcome. And I don't think anybody is ever gonna be able to firmly establish that this happened. So I don't want to be misunderstood here. But this decision is so shocking to people. Folks, there's nothing constitutional about this law. It is utterly shocking. What happened today is disgraceful, and that's why the rumor mill is ginning up, because people are trying to find a logical explanation because the Constitution effectively didn't exist today when this decision was announced.

And the people trying to figure this out are obviously going to look into the rumor mill and try to find some way of explaining it. It's not gonna change anything. So you might say it's pointless to focus on it, other than it being gossipy and interesting in that regard. However, if it were ever confirmed as true that a chief justice, any justice, was motivated by virtue of threat and intimidation to change a vote, if the threat of intimidation and whatever else can result in vote changing or a vote, period, then of course you'd have to conclude that essentially you got organized crime running the show, not the Constitution. Organized crime definitionally, not literally.

There's another blog out there that is rolling with the same theory. It's called Legal Theory Blog, and they've come up with the same thought. And they've got an article: "Evidence that the Votes Shifted After Conference (Initial Vote to Declare Mandate Unconstitutional)." They're looking at this. And, by the way, all of this is permissible. They can vote, change their votes whenever they want, up until the time of announcement, or whatever limit they place on themselves. The justices in the court are not bound by their first votes, by their original votes. It has a larger meaning, obviously, and it takes me back to Artur Davis. I'll read you the second paragraph of Artur Davis' e-mail today.

"But there is a larger story: this result shows the left’s continuing capacity to shape elite opinion by marginalizing positions that roughly half the country holds." What he means, conservatism has been marginalized to be kookville. "Just as the left has caricatured opposition to same-sex marriage and abortion as retrograde and extreme, it just pulled off the same feat in the context of Obamacare: the case was made, and Roberts bought it, that a Court that has struck down 169 congressional statutes would somehow be dangerously activist if it added a 170th one to the mix. Its an undemocratic, disingenuous sleight of hand that the left is practicing, but it is winning: the cost is that it only widens the gap between Middle America and the elite."

So his point here, is that whatever intimidation was used on Roberts, it was, "Hey, Judge, do you really want to be thought of as a nutcase kook right-wing extremist?" And that's what Artur Davis said, whatever the pressure was, and if there was such pressure, that's how it manifested itself. Anyway, folks, I feel nervous even mentioning all this stuff to you because it gets into the area of pure speculation and gossip, and I want you to understand that that's what it is. And there's a reason for it. This is inexplicable to people, and they're trying to understand it. What in the hell happened here? What happened to the Constitution? That's why all of this is being visited the way it is. But no matter what the speculators come up with, it's not gonna change the outcome today.

RUSH: Okay. Look, let's cut to the chase here, folks. The reason that I'm nervous with all this speculation that Chief Justice Roberts "caved" and who "got to him" and who intimated him is simple. The reason I'm having trouble with this is that I don't think that's what happened. I believe I mentioned earlier this week (it might have been yesterday or the day before) that I had been warned years ago. I was in a conversation about justices on the court and how they respond to public pressure in the Washington Post Style Section.

You know, the usual obligatory way you go and discuss the way that the media tries to influence outcome of votes on the Supreme Court. And all those conversations centered around Justice Kennedy as the swing vote. And I was warned, "It's not Kennedy you have to look out for. It's Justice Roberts." I can't tell you who told me. No, no! I know who it is. It's not that I've forgotten. It's that I can't mention it. I think really what happened here is not a cave. I don't think there was a cave, folks.

I think Chief Justice Roberts is establishing his legacy. I think it's what he wanted to do. I think this is his imprimatur. This is The Roberts Court, like we had The Warren Court and we had The Rehnquist Court. This is The Roberts Court. This is his stamp on it. I know it's fun to think about the intimidation that might have occurred and who succeeded with it and so forth. There's also... I don't want to mention any names on this, either, because I don't mean to embarrass anybody. But the other thing going on that you might have seen or heard yourself is this:

"Hey, wait a minute, Rush! Rush, wait a minute! Didn't this tax increase originate in the Senate? Aren't the taxes in the Obamacare from the Senate and therefore they're unconstitutional?" Well, where are we gonna go on that? We gotta go back to where? The very same court that just said it's okay! So what do we do? Okay, even if that's a valid point. I understand this kind of stuff is gonna happen on a day like this. People are grasping at straws. They're trying to look at something, anything they can grab onto to explain this and to give us some hope that we can reverse this.

RUSH: I have my wits about me, folks. I always do. I am not sidetracked. I am not diverted. I am not distracted, nor am I intimidated. I'm gonna tell you exactly what happened here, and it's not what the rumor, speculation is. I understand that. This decision's inexplicable to people. They're desperately trying to come up with an explanation that would fit in their minds. "My gosh, what happened here?"

Here's what happened. The Supreme Court, a majority of the Supreme Court, found Obamacare unconstitutional. They found the mandate unconstitutional. The chief justice, John Roberts, kicked into activist mode and found a way around that. I don't care if he found a way around it because he was intimidated by Obama, or Patrick Leahy, or somebody in the media. I don't care. Because I don't think he was. I think he did what he wanted to do. He has sided with the liberal justices more often than not in previous decisions. I just throw that out as a statistic, not as evidence. I think he's building a legacy. This is what he wanted to happen. He found a way for it to happen. And so now, folks, it's game on. And I know some of you may get sick and tired of always being in this position. Why is it always game on? Why is it always us that have to do -- well, it's the way of the world. It's simply the reality we face today.

We are up against people who believe in tyranny. We are up against people who do not want there to be individual freedom and liberty in this country. That's what we face. We don't face people who like a level playing field with the will of the people being the determining factor. It's not the people we're up against. We're up against people who do not like the US Constitution. We're up against people who do not like this country as founded. We're up against people who want to change it. They have not liked it for a long time or they've never liked it. We don't have time to try to analyze why. We don't have time to try to figure out how they ended up being this way.

We now are governed by a monstrous assault on our personal liberty and freedom. We are governed by it. We are living under its thumb. Jackboot. And it is now time to wrap this monstrosity around Obama's head. He will not tell anybody what this bill means. It's up to us. And we can't even count on Romney to do this. All we can do is hope that he gets it right. We have to tell people what this bill is, and we have to be able to show them and tell them that's what this bill is and explain it. This bill is death panels. This bill is massive taxes on our behavior. We have to be able to explain that what happened today does not mean free health care for the poor. If anything, it means the poor will lose their health care, what with this Medicaid expansion.

We have death panels now. We have massive taxes, tax increases. We have taxes on our behavior. We have a tax if we choose not to have health insurance. You young people who don't want to buy health insurance because you don't need it yet. Too bad. If you don't, you pay a fine, and there are 16,000 IRS agents newly hired who are going to be enforcing this thing. There are 2700 pages in this monstrosity. There are going to be regulations that haven't even been dreamed up yet because, as the bill states countless times, "As the secretary shall determine." The secretary of Health and Human Services can pretty much write the law as he or she goes.

There will be denial of care. Not everybody's gonna get health care, whether they're insured or not. It's gonna be determined that some people's health care is not worth the cost, either the disease is too far advanced or the disease is too far advanced and they're too old, or perhaps they're not of the right political party. Don't you dare discount that. We are up against people who want us -- Artur Davis is exactly right -- marginalized. Half of this country they want marginalized as extreme wacko alien kooks. These are people that would be happy to deny your grandmother health coverage if you didn't vote for Obama, and I am not exaggerating. These are people who itch, bureaucrats and so forth, who itch for that kind of power over people. This law provides it.

Rationing, it's all part of the mix. We're $16 trillion in debt. Not everybody's gonna get health care. And I don't care what Obama says, not everybody's gonna get the best health care. Not everybody's gonna get equal health care. Not everybody's gonna get equal insurance. Nothing Obama says about this has very much relationship to the truth. You're not gonna hear about any of this stuff that I'm telling you. But it is game on. We're gonna have price controls, because premiums and things, prices of health care are going to skyrocket. And these experts, these statists, the people who want total dominion and control over your life are gonna be shocked, because some of these people are true believers and they really believe all the propaganda.

They believe it's gonna be cheaper. They believe it's gonna get more plentiful, and when it doesn't they are going to be shocked and stunned and they're not going to understand it, just like when every other program of theirs fails, they're clueless. All they want is credit for their good intentions. But they're gonna have to deal with the failure. They're gonna have to deal with the problems this bill creates. So there will be rationing. There will be price controls. There will be massive deficits. And all of this needs to be wrapped around the head of Barack Obama and every Democrat running for reelection who supported this thing, which is every one of 'em. That's where we are. That's what this is, and now this precedent, set by this ruling today, where the government can tax behavior, not just your income, not just your user fee at a public park or a federal park, or not just your gasoline tax. Now sky's the limit. Whatever they want to tax, they can. That was just affirmed via this decision today.

Now, I must say there are some people out there... It doesn't matter who. And this is quite natural, too. I understand this psychologically. There are people who are trying to point out positive aspects in the Roberts ruling. There are people who are saying, "We gotta be very careful, Rush! John Roberts is a George Bush appointee. We don't want to dump on John Roberts." Um, sorry. This is an appalling, disgraceful decision -- and it's going to be remembered as such.

This decision, this ruling originally was found to be unconstitutional. According to the Commerce Clause, it was unconstitutional. And what happened was the chief judge found a way, going activist, to make sure this bill survived. And it was the chief justice who accepted a very little used administration argument that, "Hey, it's tax," even though we played the tape where Obama said it wasn't a tax. He went to the mat telling George Stephanopoulos in 2009, "It's not a tax increase, George."

Obama was out there saying, "Nobody who makes under $200,000 a year will see their taxes go up as long as I'm president." Everybody's taxes go up and sometimes monstrously high here. Obama went to the end of the world trying to convince people this is not a tax increase. And when the mandate was running into trouble, then they tried to say, "Well, maybe it is a tax." They sent their little Verrilli up to the court to argue, "It could be a tax." They weren't excited about it. They didn't want to sell it that way.

It turns out they didn't have to. The chief judge found it! He said (summarized), "You know what? I'm just gonna call it a tax. The government can do that. They can't make everybody buy health insurance with the mandate, but they can with the tax code." That's what happened today. It's an appalling, disgraceful decision.

Yeah, I am with you.

They are not "The Greatest Generation", that honor rests with the FFs and Patriots.

The WW2 Generation and their parents (the Democrats or Progressives among them, to be more precise) turned the US into a Socialist nation.

In no particular order, they espoused:

Income tax, Keynesian hyper-overspending, SS, countless other WPA stimulus programs still hemorrhaging money to this day, Medicare, welfare of various flavors, global wars necessitating totalitarianism here, followed by dozens of stupid, interminable, unwinnable wars.

Overall, these two generations harmed the Republic greatly and perhaps terminally.

But they were smart enough to have a fantastic PR machine following them every step of the way, from Richard Rodgers, to Frank Capra, to John Ford, to Steven Spielberg, to Tom Brokaw.

Yeah, I am with you.
They are not "The Greatest Generation", that honor rests with the FFs and Patriots.

The WW2 Generation and their parents (the Democrats or Progressives among them, to be more precise) turned the US into a Socialist nation.

In no particular order, they espoused:

Income tax, Keynesian hyper-overspending, SS, countless other WPA stimulus programs still hemorrhaging money to this day, Medicare, welfare of various flavors, global wars necessitating totalitarianism here, followed by dozens of stupid, interminable, unwinnable wars.

Overall, these two generations harmed the Republic greatly and perhaps terminally.

But they were smart enough to have a fantastic PR machine following them every step of the way, from Richard Rodgers, to Frank Capra, to John Ford, to Steven Spielberg, to Tom Brokaw.

Finally, someone said it. I have felt that way since I first heard "The Greatest Generation" They set up all of the ponzi schemes that are bankrupting us now.

Nice post and I am interested in what you say.

However, the political consequences of "calling it a tax" are nil.

Obama people don't have a negative vibe from the words "tax" or "taxes".

They like taxes. They don't pay taxes. You and I do.

Taxes are the fountainhead of sustenance and life without which they can not live.

From taxes come transfer payments.

Likewise "mandates".

That word only has a negative connotation to those of us who obey the laws and are not parasites.

Obama people don't get "mandates", they get "waivers" and other official excuses to produce nothing, do nothing, pay nothing.

You can read my back posts if you want to know how I’m liking it.

But that doesn’t mean I agree with the posters who are looking to put his head on a pike. Plenty of authors like Jonah Goldberg admit that even though they didn’t like what he did, it just may have taken some guts to do it.

It was cowardice that made him do it.

He either was threatened to change his decision, or, was afraid to act like a conservative because he was a new guy in DC.

Plus the guy has 24/7/365 armed protection, lives in luxury, travels in a private jet, and is surrounded by people who worship him all day and night.

He will never want nor worry for the rest of his life.

Guts?

You are as out of touch as he is.

He now is the darling of the Left.

You must be dipping into the bath salts with Goldberg.

I’m not sure how on his salary (around $225K a year or so) and 5 or 10 million he made before becoming a judge would mean the guy travels by private jet. That’s a bit more the domain of billionaires and people like Nancy Pelosi.

But I have no idea about that.

I can understand why you are angry, I am not happy with the decision either. But head on a pike is the kind of thing I have to teach my 5 year is NOT what you do to somebody because you don’t like 1 or 2 things they’ve done.

Children have the instinct to want to physically hit their siblings over the slightest infraction. A parents’ role is to constantly reinforce the fact that you can dislike something they’ve done, yet not hate the person.

Part of that is called EMPATHY.

Alas we’ve become a society of narcissists and hating anybody who does something we don’t like is commonplace. Balance is not even seen as a goal for a lot of folks.

I don’t know why John Roberts did what he did. I wish to hell he hadn’t. But I plan on seeing how the next year fleshes out before I cement my opinion about him.

You need to teach your kids as Andrew Jackson's mom taught him.

Little Andrew was crying one day. His mother said, "Don't cry Andrew, little girls do that."

"What do little boys do, Mother?," he asked.

"They fight!," she said.

Now you've had a full dose of American History for the day.

Regards,

Sure, next time he pops his little sister one for grabbing the last doughnut I’ll be sure to praise him.

In seriousness, we are surely not teaching our son to be a wimp. He’ll be hunting with his dad before he turns 9. But there is a balance to be struck between learning to be a brave and strong man, and being a kind and understanding man as well. I am not out to raise a homo; but neither am I out to raise a self centered a$$hole.

RE :”Careful, you might unwittingly fall into the trap of furthering the leftist agenda.
You see, what they want is for Americans to gradually come to accept the changes they force upon us as normal. To the frog in the pot they say “Don’t worry, the water is not getting any hotter. That’s how it’s supposed to feel.”

Not knowing me I can see your concern.
You see I been preaching against behavior based tax credits for a few years here now, pretty much alone. In fact one or two freepers even told be they think they are good because any ‘tax cut is good’ Pissant was one, but he is gone now.

They are already using the tax code, in the case of credits many are just handouts, to guide our behavior. But many Republicans see behavior based tax credits as just another tax cut, and all tax cuts are good right? Others just see it as free money, who doesn't want that right?

That is why I didn't go into a tizzy about this and never got my hopes up for huge victory in this case.
Thanks for the polite response. I appreciate it

Great post. I was out of town and then without power. Many people in Maryland, Va and DC area lost their power.

One thing that troubled me was the way Obama and the MSM attacked the Supreme Court after the Citizens United ruling. Obama attacked the Supreme Court during the State of the Union Speech. This is unprecedented.

The Obama Administration are Chicago thugs. They use violence, extortion, lies and any other means to get their way. It appears the Obama Administration is attacking the Supreme Court because they feel Roberts is weak and can be pressured.

Other articles have now stated definitively that Roberts originally believed the law was unconstitutional but changed his opinion late in the process. Roberts could not possibly have been persuaded by the convoluted and almost nonsensical arguments supporting the health care law.

The penalty in the bill can be called a tax, anything the government does to take money from citizens can be called a tax. But government actions to compel personal behavior is the tradition of a totalitarian state. Roberts must know this. He even knew that the commerce clause argument was dishonest. This argument essentially said that the commerce clause lets the government do anything it wants and the other freedoms in the Constitution don't matter.

I can only speculate about what specific act caused Roberts to change his vote. He talked about wanting to be in a impregnable fortress soon after the decision. I only know he changed his position late in the process and that it had nothing to do with the legal or constitutional merits of the case.

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