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Roberts' Ruling Took Guts ^ | June 29, 2012 | Jonah Goldberg

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.

TOPICS: Culture/Society; Editorial; Government
KEYWORDS: jonahgoldberg; obamacareruling
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To: Meet the New Boss

“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?

41 posted on 06/29/2012 6:41:23 AM PDT by FrogMom (There is no such thing as an honest democrat!)
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To: driftless2

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$$, . . .

42 posted on 06/29/2012 6:41:51 AM PDT by Arm_Bears (Journalists first; then lawyers.)
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To: isthisnickcool

Somewhere Hillary is laughing.She probably has a drink in her hand too.

43 posted on 06/29/2012 6:45:48 AM PDT by fatima (Free Hugs Today :))
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To: GoldenPup

Upholding the grand FR tradition of not reading the article before posting a reply since 2006.

44 posted on 06/29/2012 6:47:01 AM PDT by Sherman Logan
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To: FrogMom

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.

45 posted on 06/29/2012 6:47:49 AM PDT by Meet the New Boss
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To: GoldenPup
Roberts' Ruling Took Guts

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.

46 posted on 06/29/2012 6:52:33 AM PDT by arasina (So there.)
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To: Vaquero
“If you want a friend in D.C. - buy a dog” Harry Truman

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.

47 posted on 06/29/2012 6:59:20 AM PDT by allmendream (Tea Party did not send GOP to D.C. to negotiate the terms of our surrender to socialism)
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To: Kaslin

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.


48 posted on 06/29/2012 6:59:42 AM PDT by LibLieSlayer (Don't Tread On Me)
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To: Kaslin
That's all very interesting, but it leaves aside the real issue: None of those concerns are what was asked of the court.

Years ago, I had no use for Goldberg's writing. He used too many pop culture references and tried a bit too hard to be clever.

He has matured as a writer greatly. He is concise, expressing big ideas in a small number of words. This was a very good piece.
49 posted on 06/29/2012 7:01:33 AM PDT by Dr. Sivana (There is no salvation in politics.)
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To: Cincinatus
the Washington area is full of govt statists...they dominate the schools, the law offices, the good neighborhoods, etc...

Roberts let himself get manipulated...

either that or he was just a fake to begin with...

or evil....

or just stupid...

I don't know what reason is worse...

50 posted on 06/29/2012 7:06:55 AM PDT by cherry
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To: SueRae

re read the in “it took guts for Roberts to sit there straight faced and spout such insanity”

51 posted on 06/29/2012 7:14:49 AM PDT by cherry
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To: commish

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.

Interesting, but you will agree there is no such thing as budget reconciliation until the Senate decides to submit a budget. That is one of the major problems getting spending cuts. No budget or reconciliation for over 1100 days or so.

52 posted on 06/29/2012 7:26:03 AM PDT by wita
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To: Meet the New Boss
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.

Good summation. There is no "silver lining" to this. Roberts betrayed his own oath of office. Also, I see no reason to expect anything better from him in future decisions.

"Meet the new Souter, same as the old Souter".

53 posted on 06/29/2012 7:31:56 AM PDT by Sans-Culotte ( Pray for Obama- Psalm 109:8)
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To: Sequoyah101
I’ve been listening to Bill Bennett’s show since 0500 this morning

Did you hear the couple of MD's that called in that are forming their own doctor groups that will not take patients in Medicare or Medicaid? Did you hear them talk about what might happen to their licenses if they don't take all patients on assistance and agree to the huge pay cuts that come with them?

And then the one doctor said it is all by design, in the bill it has language about new doctors that are being taught that their first allegiance is to the state not to their patients?

54 posted on 06/29/2012 7:35:59 AM PDT by thirst4truth (
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To: Kaslin
Roberts has the infection. He told us his court is not the place to go for Constitutional opinions.

What he said was, "You want "Constitutional"? You'd better start electing it. I won't do "Constitutional" for you."

In other words, if you want something done right, do it yourself.

55 posted on 06/29/2012 7:38:40 AM PDT by GBA (To understand what is happening to America and why, read The Harbinger by Jonathan Cahn)
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To: Anti-Bubba182
If he did it once he will do it again. I am afraid we have Earl Warren II.

For THIRTY more years!

56 posted on 06/29/2012 7:51:25 AM PDT by thirst4truth (
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To: BornToBeAmerican

Sorry but they already tax us to fund abortions. They give money to Planned Abortionhood every year and turn a blind eye to how it is spent.

57 posted on 06/29/2012 7:54:50 AM PDT by rockrr (Everything is different now...)
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To: LS
The severe limitation of the commerce clause and the striking down of the Medicare imposition on states ripped the real guts out of Obamacare, while upholding the tax puts it back in the hands of Congress (where it should be) and allows us with reconciliation to eliminate it. Obviously, Obama will veto, and obviously, then, nothing will be funded.

That is the sheer genius of it!

58 posted on 06/29/2012 8:00:14 AM PDT by New Jersey Realist (America: home of the free because of the brave)
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To: Kaslin
Roberts' Ruling Took Guts

It sure didn't take any brains.

59 posted on 06/29/2012 8:01:53 AM PDT by dfwgator (FUJR (not you, Jim))
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To: thirst4truth

Yes, I did hear it. Bennett has one of the best little known shows on the air.

It is all about control isn’t it?

60 posted on 06/29/2012 8:02:04 AM PDT by Sequoyah101 (You've been screwed by your government.)
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