I’ve had a chance to read the majority and minority rulings.
[1]I’ve been reading these things for a number of years now and anyone who has done so, even those not legally trained, have begun to recognize that the majority and minority opinions from the USSC have distinctly different tones in them, regardless of whether the ruling and its consequences tends to lean to the left or right. The minority opinion in this case written with a tone which is consistent with it being perceived by the authors, as the majority opinion. On that basis, it appears the switcheroo was done by Roberts.
But why? That point was apparently addressed by Rush Limbaugh on Friday:
RUSH: If you gotta go into all kinds of contortions, if you got to go outside the bounds of the law to save the act, and that’s what the New York Times quotes Justice Roberts saying. Justice Roberts suggested that even he didn’t find the tax argument especially plausible, but he quoted Justice Holmes to explain why it was good enough. “As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid,” Justice Holmes wrote, that would be Oliver Wendell, “our plain duty is to adopt that which will save the act.”
This is the New York Times reporting that Roberts, “Gosh, I got to save the act. I got to save the act.” So he went back and found Oliver Wendell Holmes: “As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act.”
Well, excuse me, Mr. Justice Roberts, but how did that work in your Arizona finding [2]?
Well, if he’s using Holmes as his model, we can see what happened.
Judge Robert Bork tells us, that there is a story of Justice Holmes and Judge Learned Hand, who had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”
And therein lies the problem. Consider this from Unkategorized [3]
Holmes is particularly associated with what Anthony D’Amato and Arthur Jacobson call the “‘Separation Thesis’—the thesis that law is entirely separate and distinct from any value-system such as justice or morality.” Famously, Holmes proclaimed: “I hate justice.” In a letter from Holmes to John Wu, the former wrote: “I have said to my brethren many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.”
Similarly, Hand characterizes his “job” in a letter to Harold J. Laski:
I have been in a minority of one as to the proper administration of the Sherman Act. I hope and believe that I am not influenced by my opinion that it is a foolish law. I have little doubt that the country likes it and I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.
Justice was not the only thing Holmes hated. “I hate facts,” Holmes frequently remarked; “the chief end of man is to form general propositions.” He was always careful to add that no general proposition is worth a damn.
Kinda makes you wonder why Holmes is held so highly by conservative legal types. But it leaves no doubt in the mind what motivated Roberts.
But why wasn’t, as Rush asks, this standard applied to the Arizona Immigration case?
[4]Now, it doesn’t appear to me, I know the two cases are different, but it doesn’t appear to me that the chief justice went out of his way to find Arizona’s immigration law constitutional. Now, I know that the Arizona law, that case was a case that was Arizona versus the regime and there was no congressional legislation per se that was being argued. But at the end of the day, it was. Federal immigration law was not being enforced. Arizona is falling apart because of it. They passed their own laws which mirrored the federal governments laws so they can enforce them. And the court said you can’t.
So it’s not consistent. We’re gonna do everything we can to make sure the act is upheld. No. Only certain acts.
…
“It’s not our job to protect the people from the consequences of their political choices.”
You see, in Arizona, you know what, political choices, we don’t agree with your political choices, we’re gonna reject your choices in Arizona.
It does seem to me that it’s going to be very difficult indeed to avoid the charge that there was political motivation involved with this. Limbaugh points that out as well as anyone, thus the rather extensive quote here.
I pointed out in my hasty response the other day, (which was obviously typed on a telephone keyboard thus errors and all)
I see no good coming from this ruling. And I mean for either side. Yes Obama and company will declare victory… and didn’t do you have already done so. then again obama and his apologist declare victory after last years disasterous midterm elections. So, I’m not convinced we should take their victory dance seriously at all.
Some of us, David among them, losing to feel that there is a bit of light showing here :
True, I’d rather see Obama Care dead, and it is still alive. However, thanks to Chief Justice Roberts, Obama Care is now closer to being dead, and easier to kill. The democrats have been using this it is a tax, it is not a tax shell game. Now a stake has been driven through the heart of the theory that Congress can create a class of commerce for the sole purpose or regulating it.
Democrats who defend Obama Care, do so by taking ownership fo the largest tax increase in our nation’s history. Barack Obama adamantly defended Obama Care as not a tax. He now defends the Roberts’ ruling declaring his pet cause a tax.
Sorry, but I have a great deal of difficulty accepting that there is any sunshine at the end of the tunnel. Rather I begin to think that it is the headlight of a train. and there wasn’t a person on earth, including the democrats is signed off on the thing, who didn’t realize that the thing was a tax. Even Clinonista George Stephanopoulos, hardly a bastion of right wing thought himself, drove this point home:
The bottom line here is we all knew it was a tax increase and it made no difference. It made no difference whatsoever. It got driven through anyway. So Roberts coming out and saying nothing but what we already knew two years ago, is not going to make a bit of difference in terms of killing this thing off, now. Sorry, it just won’t. Oh, I agree that we may yet be able to kill the thing off. There’s a small chance we may yet survive. But it isn’t going to be because of Roberts’ attempting to be clever in all of this.
[5]Justice Roberts
The Roberts ruling was totally unexpected by the usual pundits. Nobody called this thing. Absolutely nobody. I suggest to you, respectfully, that the reason that that is is that they didn’t expect Roberts to go outside the scope of the law. I E., the Constitution, as regards and filtered through, the arguments that were brought in the case. The fact of the matter is, that as I read the transcripts of the oral arguments, that very little was said about this being the tax. The argument that was brought before the court by the Obama administration was that it was constitutional under the commerce clause. The Obama administration officials that argued before the court almost religiously ignored the concept that it was a tax. Yet, Roberts was hell-bent as Limbaugh suggests, on finding some way to uphold the act…. and so apparently decided to do the Constitutional groundwork of the Obama administration for them. This is an amusing situation at least insofar as Obama considers himself to be a constitutional scholar. He was dead wrong on the commerce clause argument. But Roberts had to find some way to make the act work. So he offered up the tax option.
Roberts in his cleaver mood, has been successful in dropping what he perceives to be rather hot potato in the lap of Obama and company. Certainly, Roberts has been successful in getting the Republicans a weapon, in that what he has said is Obamacare is the largest tax increase in the history of the world. But will the voters take the word of Roberts on this thing? Most voters aren’t paying that close attention anymore. They certainly will not be in six months time. All they see is “free stuff” and a dive in with both feet. I begin to think that the only way that Obama and his liberalism here is going to be removed from the political picture in this country is if someone manages to catch him with either alive Boy or a dead girl in the Lincoln bedroom. And maybe, not even then.
Now as to the future and the chances of our eliminating socialist Healthcare from the books, I still find myself skeptical in the extreme.
Mitt Romney now claims he is going to eliminate Obamacare on the first day of his administration. His own history comes back to bite him on this one. I find it difficult to believe, myself, that the author of the legislation that Obama used as the basis of his monster…is going to kill off his own handiwork. I will be pleased to see it if it happens, but I’m extremely skeptical that it will. I suspect that the best we will see is a watered down version of Obamacare with Romney’s name on it. Which, of course, is no good whatsoever.