Skip to comments.Roberts' Ruling Took Guts
Posted on 06/29/2012 5:34:04 AM PDT by Kaslin
Why not just cut open a goat and be done with it?
In ancient Rome, a special kind of priest called a haruspex would "read" the entrails of sheep to divine the will of the gods, the health of the growing season, or whatever else was weighing on the minds of men. Because animal guts don't, in fact, impart that much information about, say, next year's wheat harvest, the haruspices (called "auspices" in Latin -- from which we get the English word) could pretty much make it up as they went along. The same went for the auguries (priests who studied the flight of birds). Ultimately, the auspices and auguries made their decisions based upon the whims, vicissitudes and demands of politics in one form or another. If the rulers were happy with the result, they didn't much care what the guts actually said.
Fast-forward to chief haruspex John Roberts.
In the majority opinion written by Roberts, the Supreme Court held that the mandate to buy health insurance under the Affordable Care Act (aka ObamaCare) is unconstitutional under the Commerce Clause and the Necessary and Proper Clause. But Roberts also found that it's constitutional under Congress's power to tax. It is on these grounds that Roberts upheld the constitutionality of ObamaCare, siding with the four liberal justices of the bench.
The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli, but it can tax you into doing so. Huzzah for liberty!
To reach this decision, Roberts had to embrace a position denied by the White House, Congress and vast swaths of the legal punditocracy: that the mandate is a tax for the purposes of constitutional consideration but not a tax according to the Anti-Injunction Act (which bars lawsuits against taxes until after they're levied). Roberts' effort, wrote Justice Antonin Scalia in dissent, "carries verbal wizardry too far, deep into the forbidden land of the sophists."
Let the record show that the sophists were valued defenders of entrail-reading.
Of course, there are substantive arguments in favor of Roberts' reasoning. But as far as I can tell, no one is confident, never mind certain, that Roberts actually believes his own position. And among supporters of ObamaCare, from the White House on down, no one cares whether he does.
President Obama -- self-praised constitutional scholar -- mocked those who called the fees and penalties under ObamaCare a tax. Now he celebrates a decision that mocks him back. Democratic National Committee Executive Director (and former White House aide) Patrick Gaspard seemed to summarize the depth of concern on his side of the aisle when he responded to the ruling on Twitter: "it's constitutional. B----es."
More sober-eyed liberal legal experts took similar positions. Roberts' opinion was "statesmanlike," they claimed, and, more bizarrely, "apolitical." Some, such as constitutional scholar Jeffrey Rosen, speaking on National Public Radio, even celebrated Roberts' brilliance at finding a way to save the reputation of the court by deploying what Thomas Jefferson called "twistifications."
Indeed, before and after the ruling, much of the journalistic and legal establishment argued that a 5-4 ruling to overturn ObamaCare would be "political" because the majority would be comprised entirely of Republican appointees. But a 5-4 ruling to uphold ObamaCare would be apolitical because, well, it just would be.
In other words, if five conservative justices rule according to their well-known convictions, it's illegitimate. But if Roberts twists himself like an illustration in the Kama Sutra to find a way to uphold the law, then that amounts to "leadership."
Now, I don't know what's in Roberts' heart, but no court watcher I've heard from puts much weight on the idea that Roberts did anything other than reason backward from the result he wanted in order to buy respect from the court's critics at the expense of his own beliefs.
At least that's one thing both fans and critics of this ruling can largely agree on.
Some of Roberts' defenders claim he's outmaneuvered everyone. By upholding ObamaCare, he's made future conservative decisions unassailable. He's poisoned the well of the commerce clause for liberals. He's removed the court as an election-year issue. He's gift-wrapped for Mitt Romney the attack that Obama has raised taxes massively, violating a host of promises and assurances. And, again, he's saved the legitimacy of the court.
That's all very interesting, but it leaves aside the real issue: None of those concerns are what was asked of the court. That so few people seem to care augurs poorly for the rule of law and the auspices of our republic.
We hired Roberts to do a job. He did not do it. What he did was activism from the bench. He and the other 4 justices spit in the face of all Americans.
This was the same guy who voted to uphold the 2nd amendment on a number of cases. It boggles the mind, this decision.
I think he became belt-wayed. The parties with the liberal washington in crowd. The brain washed spouse. And the promise of peace at home(whip cracking sound).
I hate DC
Very fine article, and not at all what I expected from the headline.
Jonah nails it.
It must have taken guts — it sure as hell didn’t take any brains.
Somebody’s been reading too much VDH!
He has also refused to hear several cases of blatantly unconstitutional oppression of religious freedom, letting lower court ruling of suppression stand.
I’m beginning to see that Roberts may be “coming out” as many now liberal justices have done.
Right. So did what Benedict Arnold did. Moron.
Playing political games, especially because you’re trying to make nice with the Socialist-Liberals who hate you, in NOT the friggin’ job of a Justice of the Supreme Court. He was to rule on the Constitutionality of the Commerce Clause. But, he went a step farther and said: “Yeah; it Unconstitutional, but I’ll call it a Tax and let this p.o.s. stand.”
He has betrayed his office and this nation.
I’ve been listening to Bill Bennett’s show since 0500 this morning. He has had lots of good guests on. Nobody can explain why the traitor Roberts has done this. Nobody.
He rewrote the law for the administration and CONVERTED the mandate to a tax and it never was. IF he was being clever he has been too clever by half. I think he was bought or threatened. He had to contort his logic to “justify” this.
Will someone, can someone enumerate and value the taxes in this monstrosity, let alone the freedoms it destroys.
I think I just heard Paul Ryan say there are 28 taxes buried in this. It is massively flawed. Can’t the republicans communicate, in some simple terms, what this has in it to the people?
I already hear working class people interviewed who are saying that they can’t afford any new costs. None. No new insurance and no new taxes. They are tapped out.
In the end he thought more of himself and an institution that he thought of his country.
I prayed that it would be squashed yesterday, but I was not so naive to not consider the consequences if it had been so.
In reality though, all of the above is perfectly true.
Let zero talk his way out of the new mega TAX. Put the ball back in Congress’s court. It is true, Governments can TAX at will, but they do so at their own peril. This election has been gift wrapped for the GOP. Nothing More Nothing Less.
The Left even now are saying that this will all be forgotten by Nov. BS!!!!!!!!
Roberts, made it perfectly clear. WE THE PEOPLE still RULE!!
Let him try to tax us to fund abortions. The “Affordable Care Act” is going to die a slow painful death by a 1,000 cuts.
Over all there is now new rules to follow in from both Arizona and Obamacare. For the long haul it will define more clearly the basic bill creation. Laws cant mandate you to purchase unless you want to tax people. We need to change back congress to states getting their Senators. That alone will alter the Congress.
Eventually laws get reversed but from now on illegals and commerce will be changed forever.
The one thing folks forget is that zero has bribe files on everyone in power.
Remember the Build-a-burgers were in town right before this vote!
I don't understand this line of reasoning.
Roberts' limitation on the Commerce Clause was set forth in part III-A of his opinion.
But NONE of the four liberals joined him as to part III-A of his opinion.
So Roberts did not convince any of the four liberals that the federal government's power is limited under the Commerce Clause.
The four conservatives (including Kennedy for this purpose) DID agree that ObamaCare was invalid under the Commerce Clause.
So it was 5-4 on the Commerce Clause.
And if Roberts had NOT upheld ObamaCare under the taxing power, it would still have been 5-4 on the Commerce Clause.
So I don't see how anyone can say that Roberts "poisoned the well of the Commerce Clause for liberals."
If Obama wins and appoints another liberal, then it will be 5-4 that the Commerce Clause does NOT limit government power.
And in that day, the fact that Roberts upheld ObamaCare won't make a bit of difference.
The liberal justices did not believe the Commerce Clause limited the power of government before Roberts' bizarre action, and they do not believe it afterward.
Yes it did take brains to so intricately twist that legal pretzel to transform a penalty into a tax, especially given the language of the bill. I am going to agree with Goldberg, Roberts likely doesn’t even believe his own twisted reasoning. He made the decision purely on political grounds, to either save his arse from threats, or save the image of the Court.
They got to him. He sold. The logic is so contorted as to be unrealistic. There are also messages in the ruling such as “not up to the court to protect the electorate from politicians they elect.”
Someone said that Granny Ginsberg threatened to retire. I got news for him... she will soon anyway. She will not last the next administration and won’t take the chance on a pubbie being on seat. I’m wondering what difference that makes any more though.
If I understand the structure right, without the Medicare taxes on the states, and without taxes passed by the House, this thing is dead as Ronnie James Dio.
In spite of him self and his intentions, if Patriots are activated by this misguided activism of Roberts and manage to right this wrong, then Roberts’ action will be good...in spite of him.
I’m sick up to here with the ROberts apologists. I do not see the pony that they do in this pile of crap.
I don’t get it but I’m a simple man. I don’t get how this has saved the image of the court. It has made me scornful of it to wonder why we even have it.
The very idea that you can throw a decision preserve the image of the court is anathema to the integrity of the court.
We are morally, ethically and spiritually bankrupt. The ideas that right is right no matter how many are against you and wrong is wrong no matter how many are for it... is mostly dead.
I hope and pray that Roberts is haunted by some malevolent spirit for the rest of his miserable life and that it drives him to madness.
The idea that Roberts poisoned the well of the commerce clause by voting to uphold Obamacare is total BS. The 4 desenters said the same thing and had he of voted with them the result with regard to the commerce clause would have been the same. Instead he has opened a whole new can of worms regarding the government using taxation to force us to do something.
Read the article. He’s hardly happy with Robert’s decision. The “guts” is referring to actual intestines, livers, etc.
Goldberg writes an excellent article. Some deluded “conservatives” are trying to second-guess Roberts thinking he did this to preserve the integrity of the court. He was trying to prevent critics of the court of making the claim that the court was biased. So he was going to fair to the libs. What gibberish. The court is not there to take into consequence feelings or appearances of bias....it’s there to rule on law...period. Roberts screwed up.
It clearly doesn’t save the image of the court to people like you and me, it does just the opposite. Roberts was likely thinking of the general public and how they would have been bombarded with “the scotus is political and illegitimate” by the msm and the usurper had he rejected the whole bill.
We can, we MUST, amend the constitution to limit the size and scope of the government.
Apparently, our justices can’t read old English.
not up to the court to protect the electorate from politicians they elect.
This is so absurd. Why do we even need a Supreme Court that is suppose to uphold the Constitution.
So if congress passed a law (without a constitutional amendment) saying ONLY foreigners could be president the Supreme Court would rule “tough luck what the Constitution says...you voted for these representative who voted for this.”
There whole role is to be part of the “checks and balance” system. To stop unconstitutional laws. Robert’s just negated their whole purpose for being.
“Roberts, made it perfectly clear. WE THE PEOPLE still RULE!!
The Affordable Care Act is going to die a slow painful death by a 1,000 cuts.”
I think so too.
I know we’re unhappy, to say the least, but I also think obama and the dems will be chasing their tails with this ruling.
Follow the advice of post #23.
I don't think that's correct, LS.
The dark heart of ObamaCare is that it requires (essentially) that all health insurance in the United States must eventually conform to what the federal government decides it should cover.
In other words, for the vast majority of people, the federal government will make the decision as to whether or not a particular treatment will be allowed to be paid.
If someone comes up with a breakthrough treatment for a particular condition, it is not enough to convince doctors or even insurance companies of it. One will have to go on bended knee to a stupid federal bureaucrat, and convince him or her to allow it to be paid as an accepted treatment.
Naturally these will be political decisions, especially whenever the Left is in charge of the bureaucracy. And of course "pay to play" will be the order of the day as companies that provide medical devices or other treatments will need to curry favor with the politicians in order to ensure that the government will allow insurance policies to pay for that particular treatment.
And because a Soviet-style government bureaucracy is about the least efficient approach possible to allocating health resources, there will be massive waste and fraud and uncontrollable costs will lead to rationing of treatments and attempts at federal control of all lifestyle decisions in the name of managing healthcare costs.
My understanding is that all of that goes ahead even if states decline to accept the additional Medicaid funding to cover people up to 130% of the poverty line.
And this is why the bastards enjoy the luxury of life time appointments... so that they are above criticism and can always do the right thing with blind justice. Thus the designation Supreme Court. They answer only to the law and the Constitution. At least they are supposed to. It sure looks like Roberts answers to something else.
“Roberts was likely thinking of the general public and how they would have been bombarded with the scotus is political and illegitimate by the msm and the usurper had he rejected the whole bill.”
Excellent article indeed. Here we have Roberts creating his own penumbras and emanations... But I still don’t know why.
If he did it once he will do it again. I am afraid we have Earl Warren II.
At this point I wonder why we need either congress or the sc. One does nothing and the other is a puppet to the white hut.
Your logic is correct... the very idea that the court has no obligation to protect the electorate is absurd. Just what is the court supposed to do? What does he think their job is actually. Do they just float on ethereal clouds and contemplate their navels?
Roberts is a traitor.
“...finding a way to save the reputation of the court...”
...from the libel and slander of the left had the ruling gone against Obamacare. (Progressive, pretentious, adolescent scu*bags.)
Baloney. If he had real guts, he would have stood up to Obama and done the right thing. Instead, he cowtowed to pressure from the White House to uphold the law.
Are we allowed to post the entire piece, or should this be just an excerpt?
This is a key thing for the next couple months. The house has already scheduled a vote to repeal, but everyone says Ried will block it from the senate or the Dems won't vote for Cloture to allow it to come to a vote.
I believe that by this now being a tax and therefore being subject to budget reconciliation Ried and the Dems CAN'T block it from comeing to a vote.
So there may be a silver lining in that all the Dems currently in trouble for November may be forced to vote in support of the LARGEST TAX INCREASE IN HISTORY again right before the election.
That leaves two possible outcomes: There loss is all but assured if they vote to uphold the TAX or a couple may choose to vote against it to save themselves.
Sure, any vote before November is symbolic as Obastard will just Veto it, but whether it gets voted down or vetoed the Dem Senators that are in play in November will once more be on record.
Not sure which anti-seizure drug he’s on but they all have mental impairment side effects. These can range from confusion and disorientation to thoughts of suicide. A rumor has it that his liberal law clerks write the opinions. Hmmmmm!
Read the article, it agrees with you.
“One will have to go on bended knee to a stupid federal bureaucrat, and convince him or her to allow it to be paid as an accepted treatment. “
Aren’t they already doing that? How many years does it take to get a drug or procedure approved by the FDA?
So let me see if I understand. . .
If the SC rules according to the Constitution, the result is biased and the image of the court suffers.
If, on the other hand, the SC invents law out of whole-cloth, the result is both wise and insightful, the image of the court is burnished, unicorns poop Skittles, rainbows come out of everyone’s a$$, . . .
Somewhere Hillary is laughing.She probably has a drink in her hand too.
Upholding the grand FR tradition of not reading the article before posting a reply since 2006.
Yes it takes years and a billion dollars to get a new drug through the FDA.
In the future, add to that the cost of political contributions to the Democrats to ensure that bureaucrats will allow insurance to cover the new drug.
Right. So did what Benedict Arnold did. Moron.
You might want to rethink your comment about Jonah Goldberg being a moron. Perhaps by reading the article you will come to realize that the headline relates to the ancient practice of "reading" sheep guts. Goldberg essentially agrees with you, dear.
Maybe we should have gotten Roberts a dog. ;)
His new friends will praise his ‘statesmanship’ (A Judge should never be a statesman and have his finger in the political wind), his ‘leadership’, his ‘impartiality’ - for a day. Then if they don't like his next rulings - he will be back to being a fire breathing ideologue according to them.
Roberts violated his oath of office and removed the rule of law and the Constitution as instruments to limit an all powerful government. He legislated from the bench and he put us into a post Constitutional era... it took a leftist ideological activist to make this decision... it had nothing to do with guts. He ruled exactly how he wanted to rule and he did it as every leftist, activist jurist has ever done before him. Reference my first sentence.
Roberts let himself get manipulated...
either that or he was just a fake to begin with...
or just stupid...
I don't know what reason is worse...