SCOTUS Insiders Confirm What I Already Told You

Me, the other day:

That’s what I think happened. I think Roberts was initially going to vote with the other four and flinched, grabbing on to the tax argument lifeline.

Jan Crawford, in a sprawling multi-page CBS news report that his been burning up memeorandum all day:

Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.

The inner-workings of the Supreme Court are almost impossible to penetrate. The Court’s private conferences, when the justices discuss cases and cast their initial votes, include only the nine members – no law clerks or secretaries are permitted. The justices are notoriously close-lipped, and their law clerks must agree to keep matters completely confidential.

But in this closely-watched case, word of Roberts’ unusual shift has spread widely within the Court, and is known among law clerks, chambers’ aides and secretaries. It also has stirred the ire of the conservative justices, who believed Roberts was standing with them.

When you stop pretending that what the Supreme Court does is all about the law and precedent and deeply held views about the constitution and recognize that they are really nothing more than another political branch of government, it’s not so hard to to see what clearly happened. You don’t need to have a firm understanding of the law, you need to understand people and politics. And if I had to bet, it was Kennedy’s people who leaked all this, because most of that Crawford piece reads like a mash note to him:

On the surface, Kennedy would appear to have been Roberts’ best shot to persuade. The other three justices – Thomas, Antonin Scalia and Samuel Alito – are seen as more solidly conservative and much less susceptible to pressure.

After all, it was Kennedy who “betrayed” conservatives in 1992, when he flipped his vote in a key abortion case that could have overturned Roe v. Wade, the landmark decision that guaranteed a woman’s right to abortion.

In the 1992 case, Planned Parenthood v. Casey, Kennedy initially was with conservatives, but then forged a last-minute alliance with Justices Sandra Day O’Connor and David Souter to put Roe v. Wade on more solid ground than even the original decision itself.

Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy – in other words, changeable and too moderate.

That’s not entirely fair to Kennedy. In fact, there are underlying and consistent themes in his jurisprudence, much more so than in the jurisprudence of O’Connor. Kennedy has a libertarian streak, and he is skeptical of expansive government power over individuals. In fact, if there’s an issue of an individual versus invasive government, Kennedy sides with the individual.

As a result, Kennedy supports the right to possess a firearm for self-defense AND a woman’s right in the context of abortion. He opposes certain laws that discriminate against homosexuals or restrict a person’s freedom of speech.

Kennedy also is strong on issues of federalism – and is remarkably consistent. His opinion in a 1999 case, Alden v. Maine, is considered one of the Court’s finest in that area. Ruling that states were immune from private lawsuits in state courts, Kennedy wrote: “Sovereign immunity derives not from the Eleventh Amendment but from the federal structure of the original Constitution itself.”

And in a 1995 term limits case, when the Court rejected state efforts to impose term limits on Members of Congress, Kennedy wrote a separate, concurring opinion to make a point about federalism:

“Federalism was our nation’s own discovery. The framers split the atom of sovereignty . . . It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”

Those structural boundaries, Kennedy believes, help protect the individual from runaway government power, and are key components to protecting liberty.

All of that dovetails with Kennedy’s position on the individual mandate in the health care law. Close associates of Kennedy never thought he would waver in the case once he recognized the federal mandate as an encroachment on individual liberty (points Kennedy later would make in his sections of the joint dissent).

In fact, Kennedy was the most forceful and engaged of all the conservatives in trying to persuade Roberts to stand firm to strike down the mandate. Two sources confirm that he didn’t give up until the very end.

If that isn’t the journalistic equivalent of a tugjob in the backseat at the drive-in, I don’t know what is. Ron Fournier must be jealous.






148 replies
  1. 1
    Valdivia says:

    I thought all these leaks where about delegitimzing Roberts and his vote and the decision. Also making Obama look like the ‘intimidating thug’ they think he is.

  2. 2
    John Cole says:

    @Valdivia: Well, I rule out Scalia as the leaker, because he’s so fucking indifferent about his reputation he’d just give a public interview trashing Roberts. Thomas never talks, and I don’t see Alito in public much, so the weight of the evidence and the multi-page puff piece on Kennedy made me think it was his staffers.

  3. 3
    Valdivia says:

    @John Cole:

    I read that and thought like you that it was a puff piece for Kennedy, and all about making the decision seem illegitimate. But also–the neat trick of making the tax argument seem like something that Roberts pulled out of his ass, when in reality, however this went down, Roberts asked and talked about it in oral arguments, seeming to agree with Verilli when he did.

  4. 4
    Mark S. says:

    As a result, Kennedy supports the right to possess a firearm for self-defense AND a woman’s right in the context of abortion. He opposes certain laws that discriminate against homosexuals or restrict a person’s freedom of speech.

    He’s one of a kind! Probably only 40% of the country think that way.

    Does he also wear a leather jacket and drive a motorcycle?

  5. 5
    balconesfault says:

    I still wonder if Roberts flipped because of the threat of David Souter publicizing his dissent in Citizen’s United – the one Roberts feared so much he reargued the case after Souter resigned in order to bury it…

  6. 6
    Citizen Alan says:

    Dare I hope that the childish tantrums of the Four Horsemen will be so over the top and offensive that it permanently pushes Roberts into a moderate position on the Court? I mean, he’s always going to be a conservative, but he really does seem to be concerned about the Court’s reputation post-Citizens United, and it’s got to be embarrassing to be tied to Scalia now that he’s apparently suffering the onset of senile dementia.

  7. 7
    SectarianSofa says:

    @Mark S.:

    He’s one of a kind![…]
    Does he also wear a leather jacket and drive a motorcycle?

    Heh.

  8. 8
    dead existentialist says:

    We needz moar Dead Kennedys.

  9. 9
    Brian S says:

    Whoever argued that Kennedy is strong on abortion rights needs a kick in the head, because he’s for shit on them. He cut the guts out of Roe v Wade by making it so that states can basically regulate abortion out of existence as long as they never actually pass an abortion ban. Want to know why Mississippi is about to lose its last clinic? Because of Justice Anthony Fucking Kennedy. http://www.slate.com/articles/.....mento.html

  10. 10
    MoeLarryAndJesus says:

    The other three justices – Thomas, Antonin Scalia and Samuel Alito – are seen as more solidly conservative and much less susceptible to pressure.

    Meaning they’re bought and paid for movement whores.

  11. 11
    Jon says:

    Yeah, Kennedy comes off looking very “fair and balanced” in that article. Also, this article acts like all of those 5 aren’t extremely right wing most of the time.

    And you know this could just be a pure power play. Kennedy thinks he runs the show the way O’Connor did, by being the “swing vote.” Roberts said, not so fast. *I AM* the Chief.

    Let the wingers keep bashing him. Did them a lot of good with Blackmun and Souter.

    Also, so much for the code of silence.

  12. 12
    rikyrah says:

    I think Roberts looked into the abyss and blinked.

    I think it was Fat Tony spilling secrets

    but, I do hope this shuts people up about how ‘reasonable’ Kennedy is..he always seemed like a squealing mofo to me

  13. 13
    shortstop says:

    Four of nine justices on the nation’s highest court went with an openly partisan opinion completely unsupported by the constitution and precedent. Whether the chief justice almost went with them adds to, but is not by itself responsible for, the court being seen as an indisputably corrupt institution. There are people who will insist that Roberts coming down on the side of the angels is proof that the court is still legitimate–as though nearly half its justices acting as openly partisan hacks could be legitimacy! Those people are in pathetic denial.

  14. 14

    I’m just going to crosspost in a comment for Linda from ABL’s SCOTUS thread in case she’s more likely to see it here.

    @Linda Featheringill:

    Help me out here. Do you mean that Roberts’ essay on the commerce clause is commentary and not binding?

    I’m not sure if anyone has answered this for you, Linda.

    As I understand it (IMBALIRL) (and I am explaining this imperfectly because the real answer would have defined terms, a number of footnotes noting exceptions and possibly an index), the obiter dicta are the parts of a court’s decision that are, or can be argued to be, unnecessary to actually support the final decision of the entire court, statements “said in passing”.

    Obiter isn’t binding on the judges at a lower level than the deciding court, although it might be persuasive, whereas anything that is rationes decidendi must be followed by any lower judge (which when the full Supreme Court says it means everyone) unless they can distinguish the case they are hearing in some meaningful way.

    Dissents are obiter, unless it is a part of the dissent that actually agree with the majority on a particular subject for the same reasons. Often judges will signpost their more brazen obiters, things where they just want to rabbit on about a subject of interest.

    It’s often not entirely clear whether something is or isn’t obiter, particularly where there are multiple judgments agreeing or disagreeing on a variety of highly technical and specific points.

    That said, as burnspbesq points out the parts of Roberts’ decision which relate to the commerce clause are obiter. Roberts doesn’t need to express a view on the commerce clause as the basis for the mandate. That part of his decision is clearly marked as Roberts’ decision, not the decision of the court, because no one else on the court signed onto it, not even Fat Tony and friends.

    Lawyers like arguing, so you can imagine they find the whole idea of arguing about obiter dicta and which bits of particular decisions are obiter quite arousing.

    The wikipedia entry is also quite helpful.

  15. 15
    SFAW says:

    Nice to know the three wingnut Associate Justices are as mature as 14-year-old girls. Giving Roberts the silent treatment, oooooh! It’s like something outta “Mean Girls.”

    It’s too bad the Constitution doesn’t list “being a complete asshole, or being a corporate shill, or being not very bright nor having integrity regarding the Constitution” as a basis for impeachment. Scalia, Thomas, Alito would be gone. Well, in a just world they would be.

  16. 16
    General Stuck says:

    I do agree in general with the take the SCOTUS is acting politically, especially anything to do with electoral laws. But it is hard to make that case when the liberal side won this case, even if it was 5 to 4, to include right winger Chief Justice. Crawford said Roberts switched his vote a month ago, with the other tards lobbying him hard to vote with them. But none of them is Chief Justice. And 5 to 4 is a loss for the right wing, and a loss is a loss, even with the harsh language the 4 dissenters made in their dissent, that was off the chart for judicial activism. I don’t expect Roberts to let up with the leap rightward for him and his court, since this was the first time since he came to the court and voted 5 to 4 with the liberals. I’ve said all along that even the SC is in thick with politics, when the cost isn’t too high. It was too high for Roberts on this one case, and that’s all that was needed.

  17. 17
  18. 18
    catclub says:

    @Mark S.: “right to possess a firearm for self-defense”

    Who gives a crap about the first part of the second amendment anyway? Just con-law wienies.

    Original intent my shiny metal ass.

  19. 19
    smintheus says:

    Strangest thing about this leak is that it makes clear that the Scalia-wing’s dissent refused to respond to or acknowledge Roberts’ opinion and only addressed Ginsburg’s out of spite toward Roberts. Does Kennedy or his supporters think that makes the lot of them look like anything other than spoiled brats?

  20. 20
    David Koch says:

    I wouldn’t trust CBS, and especially winger Jan Crawford.

    CBS really lost all credibility pumping the manufactured fast and furious circle jerk.

    That’s not to say this didn’t happen, just that it really has to come from a reputable news service.

  21. 21
    smintheus says:

    @catclub: The second amendment is only there to make it easier to enforce the third amendment.

  22. 22
    Tom Q says:

    @shortstop: This is what I’ve been amazed has got so little attention. Four Republicans on the Court were literally prepared to invalidate a duly passed law — not just the mandate, about which there might in some world be thought to be controversy, but the entire fucking thing. What that said was, they were willing to act as a super-legislature, invalidating laws created by the opposing party, under a pretense of constitutionality that no one outside of talk radio would endorse. And if they’re willing to do it once, who says they won’t be willing to do it over and over?

    In that sense, Roberts did preserve the credibility/stability of the court. But there’s no assurance he’ll be willing/able to do so again.

  23. 23
    JGabriel, Statist Minded Ideologue of the Left says:

    @rikyrah:

    I think it was Fat Tony spilling secrets

    Fat Tony Scalia is hardly discreet. If it were him, his name and his side of the story would be all over it, though probably w/o direct quotes.

    I think Cole’s right: Kennedy and/or his staffers were the sources.

    .

  24. 24
    MikeJ says:

    Jan’s ex is a FotF, so I like to think she knows what she’s on about.

  25. 25
    General Stuck says:

    @David Koch:

    I rarely trust anonymous sources in this day and age. Too much bullshit being printed that turns out to be wrong. Though it really doesn’t matter that much the internal battles of the SC. What matters is what they decide with at least 5 votes/

  26. 26
    JGabriel, Statist Minded Ideologue of the Left says:

    __
    __
    smintheus:

    Does Kennedy or his supporters think that makes the lot of them look like anything other than spoiled brats?

    I don’t think they care. They’re Supreme Court Justices, nominated by proper Republicans, and they think history will read their words as if from on high.

    .

  27. 27
    amk says:

    Now that everything has gone political, time to elect sc judges ?

  28. 28
    catclub says:

    @balconesfault: Couldn’t Souter just publish that himself if he wanted to. Or give an interview accurately recollecting his main points?
    That sounds like a complete non-threat given how private Souter is.

  29. 29
    Redshift says:

    Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

    The meaning I read into this is that Kennedy desperately wanted Roberts and not him to be the poster boy for the insane wingnut side of the decision. Apparently not desperately enough to abandon that side himself, though.

  30. 30
    Eljai says:

    @Brian S: Exactly! For Crawford to say that Kennedy’s swing vote in Planned Parenthood v. Casey “put Roe v. Wade on more solid ground than even the original decision itself” is complete bullpuckey.

  31. 31
    Valdivia says:

    @jwb:

    excellent link and totally in accordance with what i thought. This is about making Roberts look like Obama’s pansy and make him look political while in reality it was the other 4 who acted as hacks.

  32. 32
    catclub says:

    @Tom Q: Did they make _ANY_ cogent argument against the tax explanation?

    I think I will have to read the dissent for myself.

    This does explain why they would not bother to give a cogent argument against the tax — a fit of pique. Same reason that Dinsdale Pirhana napalmed Cheltenham. Or was it Doug?

  33. 33
    jwb says:

    @Tom Q: The wingnuts are gambling that the way to bring Roberts back in line is to double down on the bullying. That’s a risky strategy to try in general and it’s especially risky to try on someone who possesses a considerable amount of power. I don’t pretend to have any insight into Roberts’ personality, but it’s the kind of thing that could actually lead him to cut ties with the wingers.

  34. 34
    JGabriel, Statist Minded Ideologue of the Left says:

    Jan Crawford @ CBS:

    As a result, Kennedy supports the right to possess a firearm for self-defense AND a woman’s right in the context of abortion. He opposes certain laws that discriminate against homosexuals or restrict a person’s freedom of speech.

    It almost like Crawford thinks, “Justice Kennedy is so cool Aaron Sorkin should write a show about him.”

    .

  35. 35
    Redshift says:

    OT: From my wife’s uncle in Salt Lake City:

    “Utah is the Alabama of the West.”

    No, I don’t know what they were talking about specifically.

  36. 36
    David Koch says:

    @Valdivia:

    Also making Obama look like the ‘intimidating thug’ they think he is.

    The fools. That Obama placed a decapitated horse’s head in Roberts’ bed only increases Obama’s stature.

  37. 37
    Tara the Antisocial Social Worker says:

    Fred Clark at Slacktivist raised an interesting point: Roberts’s epilepsy is a pre-existing condition that would have kept him from getting insurance in the pre-ACA days if he didn’t have such a swank job.

    So maybe the epilepsy did affect his vote – not by meds clouding his judgment, as Michal Savage has suggested, but by giving Roberts a touch of empathy. Even Republicans can occasionally figure out that problems are real if it’s something that could affect them.

  38. 38
    Gopher2b says:

    @catclub:

    They said it wasn’t a tax. They do imply that Congress has authority to pass such a tax but refuse to address it.

  39. 39
    Valdivia says:

    @David Koch:

    it’s funny to me that they see him this way.

  40. 40
    JGabriel, Statist Minded Ideologue of the Left says:

    __
    __
    Citizen Alan:

    [Roberts] really does seem to be concerned about the Court’s reputation post-Citizens United, and it’s got to be embarrassing to be tied to Scalia now that he’s apparently suffering the onset of senile dementia.

    Or worse, covering for Alito, who doesn’t even have the excuse of age related senile dementia yet.

    .

  41. 41
    TenguPhule says:

    When you stop pretending that what the Supreme Court does is all about the law and precedent and deeply held views about the constitution and recognize that they are really nothing more than another political branch of government, it’s not so hard to to see what clearly happened.

    So we are now a nation of men, not laws.

    And men are easier to strike down.

  42. 42
    jl says:

    @Sarah, Proud and Tall:

    ” you can imagine they find the whole idea of arguing about obiter dicta and which bits of particular decisions are obiter quite arousing. ”

    Settle down, SPaT, this is a family blog.

    The story in the link sounds like a pitch for reality show. Which I think would be cool. Hope it happens.

    But as other commenters above noted, Roberts did bring up the tax argument in oral arguments, and he briefly explained his reasoning in oral arguments.

    I am not sure, but I do not think that the administration dismissed the tax arguments down in the guts of the written arguments, but did so in terms of PR in the media and in oral arguments.

    So, I think there is evidence that Roberts had a compromise in mind from way back, and the crazy 3 and KennedyWTF would not bend on throwing the whole thing out, despite explicity separability clauses.

    That seems as likely a story as Roberts changing his mind at the last minute.

    So, nice little dramedy CBS wrote there, but not sure how reliable or informative it is.

  43. 43
    Soonergrunt says:

    Scott Lemieux at Lawyers, Guns, and Money had this to say about Ms. Crawford:

    I believe the reporting; Crawford is well-connected, and if you can overlook her sympathy with Federalist Society legal views her book was actually very good and had a lot of interesting nuggets. Granted, you can see some elements of her biases here — Kennedy has been “remarkably consistent” on federalism cases ? — but I have no reason to doubt that she has the story right here.

  44. 44
    gopher2b says:

    Optimistic me thinks Roberts’s vote is the first sign of the “fever breaking.”

  45. 45
    Brachiator says:

    It amuses me that everybody who guessed wrong about the Supreme Court decision are now scrambling to show how prescient they really were. For example, this from the Harvard Crimson. 

    http://www.thecrimson.com/arti.....re-ruling/

    For constitutional law professor Laurence H. Tribe ’62, Roberts’ alignment with the court’s more liberal justices on the question of taxation was not as unexpected as many analysts have said.
    __
    “Although it’s surprising how few people seem to have noticed, Chief Justice Roberts signaled on the very first day of oral argument this March that he saw this mandate as merely a tax, a view I had also expressed in my Boston Globe editorial on April 3, 2011,” Tribe wrote in an email.
    __
    Professor Einer R. Elhauge ’82 noted that the U.S. government had an advantage because of the multiple defenses for the overhaul, including Congress’s power to tax. He noted, however, that most of the justices did not discuss the power to tax.
    __
    “Most of the justices didn’t express a view on that because they were so concerned with the commerce clause,” Elhauge said.

    The stuff on Roberts’ shift could come in part from the Kennedy people, but it doesn’t really make Kennedy look good or provide any real insight into Roberts’ thinking. 

    But if the conservatives are really signaling Roberts that he is on his own, it could be the best thing to happen to the Court in years, especially if Fat Tony is bounced from his perch as self appointed Court intellectual, and is reduced to filing irascible dissents instead of being able to write for the majority. 

     

  46. 46
    Villago Delenda Est says:

    Kennedy helped appoint the deserting coward to the Presidency.

    Fuck him. His death, in searing pain, cannot come a nanosecond too soon.

  47. 47
    jl says:

    @Soonergrunt:

    I am doubtful whether Roberts’ ‘break’ was a change of mind as reported in the link, or his ‘break’ was a refusal to agree with everything the fanatial 4 wanted to do.

    Edit: in other words, if these stories are coming from federalist society circles, they may have a different viewpoint than the ‘reasonable person’ on what ‘break’ means.

    But, IANAL (thank god), so will listen to what they have to say about it.

  48. 48
    David Koch says:

    @Valdivia: I actually like it.

    Like Michael Corlene during the Lake Tahoe scene in Godfather II, he’s a good family man with a quiet and gentle persona that everyone things they can take advantage of, including his own lieutenants who constantly complain that he’s not tough like his predecessors, but in reality, he bides his time until he shoots his enemies in the eye (bin Laden/Moe Green).

    http://www.youtube.com/watch?v=wPmTp9up26w

  49. 49
    Villago Delenda Est says:

    @smintheus:

    Does Kennedy or his supporters think that makes the lot of them look like anything other than spoiled brats?

    They’re playing to the pack of spoiled brats who are the wingtards, particularly the utter scum that are the teabaggers.

  50. 50
    gopher2b says:

    @jl:

    Agreed. From the article it appeared to me the after oral arguments 5-4 justices agreed ACA wasn’t constitutional via the commerce clause. That didn’t change.

    It looks like Roberts started to write the opinion and looked for a narrow way to uphold the law (which canons of constitutional interpretation require them to do). BTW, Ginsburg has a nice dig in there…if they are holding up the constitutionality on a tax basis, they shouldn’t have ever gotten to the commerce clause issue because it was unnecessary…the Supreme Court doesn’t give advisory opinions….

  51. 51
    David Koch says:

    I just looked at CBS’s site, and they didn’t use this story in the evening broadcast.

    The allegation is pretty significant. That they ran it on their web site, but not on the actual Evening News tells me they didn’t think the sourcing was strong enough for prime time.

  52. 52
  53. 53
    Soonergrunt says:

    @jl: Other commentary, including notations that Justice Ginsburg’s original opinion was written as a dissent and directly states words to the effect of “The Chief Justice won’t explain why he thinks ACA is not constitutional under the Commerce Clause so we have to guess…”
    The fact that the dissent as it is written now reads like it was originally meant to be a majority opinion and it doesn’t address anything the Chief Justice said also tends to point me in that direction, but IANAL.

  54. 54
    catclub says:

    @Villago Delenda Est: “cannot come a nanosecond too soon.”

    Well, technically, since pain signals travel along neurons at a relatively slow ( relative to C) speed. It could come a few nanoseconds too soon to be in searing pain.

  55. 55
    TenguPhule says:

    His death, in searing pain, cannot come a nanosecond too soon. is long overdue.

    Corrected.

  56. 56
    James E. Powell says:

    This whole mishegas is right-wingers trying to explain to themselves how and why they lost. That they need to do this doesn’t mean the rest of us have to do it or care about it.

    Five justices decided that they would not overturn a federal program. Just like five justices decided that Bush should be president. The justifications are, for the most part, meaningless.

    If the supreme court had gone the other way, there would be endless Op-Eds about a center-right country and Obama’s overreach cum political naivete.

    The supreme court is one head of a three-headed political system.

  57. 57
    Pillsy says:

    Despite the fact that half the article reads like a hagiography of St Anthony of Kennedy, he still comes off like a pissy little punk by the end of it. “Let’s not even bother trying to address the argument in the majority opinion. That won’t possibly make us look like a bunch crazy people who are trying to strike down the ACA out of partisan spite!”

    Also, I love the insinuation that the only way the Chief Justice of the Supreme Court could conclude that a 5-4 ruling against Obamacare might damage the Court’s reputation is by reading newspaper editorials.

  58. 58
    Yutsano says:

    OT: My uncle just passed away from congestive heart failure. No word as to what I’m doing next yet.

  59. 59
    jl says:

    @Soonergrunt:

    Good points. Who knows what happened.

    Maybe the Commerce Clause stuff was the offer on the table to strike down just the mandate, but Roberts kept in for future use, figuring he might as well. He thought he ought to get something out of the little unpleasentness which resulted in a choice between the lesser of two evils.

    The links I read said the Roberts initially agreed to throw out the mandate, not the whole law, but I might have missed something.

    So, that’s all the time I will spend trying to figure it out, until the crogedy dramatization comes out on TV.

  60. 60
    SFAW says:

    Yutsano –

    Sorry to hear about this. Condolences to you and your family.

  61. 61
    jl says:

    @Yutsano: Sorry to hear that. My condolences. Your family will be in my thoughts.

  62. 62
    Valdivia says:

    @Yutsano:

    sorry to hear this Yutsano. [hugs]

  63. 63
    Marcellus Shale, Public Dick says:

    meh, time to watch some prawn.

  64. 64
    freelancer says:

    “Federalism was our nation’s own discovery. The framers split the atom of sovereignty . . . It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”
    Those structural boundaries, Kennedy believes, help protect the individual from runaway government power, and are key components to protecting liberty.
    All of that dovetails with Kennedy’s position on the individual mandate in the health care law. Close associates of Kennedy never thought he would waver in the case once he recognized the federal mandate as an encroachment on individual liberty (points Kennedy later would make in his sections of the joint dissent).

    Ahem. For example, The Confederacy’s right to secede from the Union is based in a solid understanding of States’ Rights federalism. The Fugitive Slave Act however, requires that there be a strong federal government to enforce escaped slaves in free states being returned to their Southern owners.

    Balance, you see?

  65. 65
    freelancer says:

    @Yutsano:

    Aww man, I’m sorry.

  66. 66
    Yutsano says:

    Thanks all. We knew it was coming, just not the exact when.

  67. 67
    Spaghetti Lee says:

    Any attempts to tear down Roberts are sour grapes, and nothing more. (Not that I admire the guy that much, but he did the right thing here) The pre-decision record of conservatives crowing about their imminent victory and concern-trolling everybody about how liberals would try to attack the SCOTUS as an institution, and them doing that exact thing after they lost and flipped out, are preserved for all time. They can eat shit for all I care.

    I don’t trust Roberts to keep making the right choices, but if there’s even a temporary rift between him and the right, it’s a good thing.

  68. 68
    Anoniminous says:

    @TenguPhule:

    Throughout the history of the US, when the elites were truly threatened, we’ve always been a nation of men. Even 80 years ago it was legal for the 1% to murder strikers as long as they got the police or military to pull the triggers.

    See this and this as two, of many, examples.

  69. 69
    Alison says:

    @Yutsano: So sorry, Yutsano. Even when it’s somewhat expected, it is still never easy.

  70. 70
    PeakVT says:

    @amk: No. Judicial elections are a bad idea.

  71. 71
    Spaghetti Lee says:

    When you stop pretending that what the Supreme Court does is all about the law and precedent and deeply held views about the constitution and recognize that they are really nothing more than another political branch of government, it’s not so hard to to see what clearly happened. You don’t need to have a firm understanding of the law, you need to understand people and politics.

    I think it’s important to get the court caring about law and jurisprudence again. Obviously that can’t happen until Scalia and Thomas and the rest die off. Thing is, I think that having the courts protected from political consequences, being a non-elected position, etc. are good things in the abstract. If they have the political life cycle of congressmen, all you’ve got is another congress. Problem is that the Right has figured out how to turn that to their advantage by just promoting RWNJ sleeper-agents to the court in the first place. Scalia in particular-I mean, I never liked the guy, but his behavior has just been disgusting. Has there ever been an SC justice who gives less of a shit about the law and judicial restraint?

    I think one thing that might help in the abstract is giving the court less attention. Fat Tony and Thomas are have basically been doing a song-and-dance show for the right wing their whole careers. Would they be such grandstanding dicks if they knew no one was watching? Well, with those two, probably, but I do think it might be a good idea in the abstract.

  72. 72
    JGabriel, Statist Minded Ideologue of the Left says:

    @Yutsano: My sympathies, Yutsano. Best wishes and be well.

  73. 73
    Ash Can says:

    @Yutsano: Very sorry to hear that. Condolences to you and your family. Like Alison says above, seeing it coming doesn’t make it any easier.

  74. 74
    Sly says:

    @jl:

    The links I read said the Roberts initially agreed to throw out the mandate, not the whole law, but I might have missed something.

    Pretty much. Roberts probably wanted to throw out just the mandate but the conservatives wanted to nuke the entire law, and that was simply a bridge too far.

    Not many people predicted this kind of split because not many people believed that there would be more than one or two conservatives who wanted to strike down the entire law. Scalia, Kennedy, Thomas, and Alito wanted to invalidate the 20th century. Roberts was simply unwilling to do that, for reasons both dealing with the legacy (and institutional legitimacy) of his Court as well as his own legal thinking. This left him no choice but to join the sane justices, who agreed to shift their (meaning Ginsberg’s) initial dissent to a concurrence.

    Roberts, at age 57, is going to be Chief Justice for a long time, as have most Chief Justices, but each Court is remembered for a handful of decisions, and often just one, that defines the legacy of both the Chief Justice and the era. Taney had Dred Scott, the Fuller Court had Lochner, the Warren Court had Brown, etc. I seriously doubt any future decision will define the Roberts Court as much as Citizens United v. FEC and, now, National Federation of Independent Business v. Sebelius.

  75. 75
    Spaghetti Lee says:

    Here’s an idea-what if we (and I’m obviously being hypothetical here) got rid of lifetime SCOTUS appointments? Put them on staggered 10 or 15 year appointments or something. I think this would stop the court’s intellectual mindset to be held hostage by the same group of people for years on end, would stop the political jockeying, stop court appointments from being an “election issue”, stop the “I’m planting my ass on this bench until someone I like gets elected president, then I’ll make room for some 45-year-old who’ll carry on my legacy for decades” game. It also might keep grandstanding douchebags like Scalia away if the position becomes less of a glamorous “Great High Court of Infinite Wisdom” thing and more like other civil service jobs. But it would also avoid the “elected judge” issue, which I agree is very problematic. Any thoughts?

  76. 76
    Soonergrunt says:

    @Yutsano: That doesn’t make it easier. Just less surprising.
    You have my sympathy, brother.

  77. 77
    Odie Hugh Manatee says:

    I wonder if Kennedy got a bubble bath and champagne after the scrotal tongue bathing. I think he is ‘feeling the pain’ of his decision, especially since he’s on the losing side of the argument, so he’s fluffing himself up with these leaks. What others above have said regarding this makes sense to me. The way it came out is really strange even though the desired outcome was the result I was hoping for. Anyone who thinks SC justices are politically impartial isn’t paying attention to the score. Lower courts are packed with ideological justices of one bent or another, there’s no reason our SC wouldn’t be either. A SC justice can aspire to appear politically impartial but in the end their record will prove whether or not that was true.

    More often than not, they’re not.

  78. 78
    Ira-NY says:

    After Bush v Gore, nothing these robed pols might do would surprise me.

  79. 79
    Another Bob says:

    As others have said, Roberts is perhaps more pro-corporation in contrast to the other conserva-justices who are more ideological. Considering that the ACA is quite a boon to much of the medical-pharma industry, Roberts’ decision may have had more to do with his allegiance to them instead of the tea-tard brigade.

    Something that I don’t quite understand is why Big Business is against the ACA. Isn’t it pretty much everything they could have hoped for? What’s not to like if you’re a big corporation? Has the U.S. Chamber of Commerce become so anti-Democrat that they’ll fight something like the ACA — a conservative scheme dreamed up at the Heritage Foundation — just out of sheer spite?

  80. 80
    Mnemosyne says:

    @Another Bob:

    Has the U.S. Chamber of Commerce become so anti-Democrat that they’ll fight something like the ACA —a conservative scheme dreamed up at the Heritage Foundation—just out of sheer spite?

    Yes. SATSQ.

  81. 81
    piratedan says:

    @Yutsano: #66 My Condolences… hope that you and your family can do the group hug thang and help each other.

  82. 82
    Yutsano says:

    @piratedan: We might be doing that later on this week. I know there’s no funeral planned. We might just gather just to be there for my aunt. 63 is far too young to be a widow.

  83. 83
    Another Bob says:

    Speaking of the Heritage Foundation, can you believe the gall? Their home page has a prominent link that says,

    Stand with The Heritage Foundation as we fight to undo the disappointing outcome of the Court’s ruling through our Repeal Obamacare Project. We must keep up the fight for our nation’s future. Stand with us as we turn the tide.
    Our nation’s future is at stake.

    Did these fuckers not come up with this plan in the first place?

  84. 84
    JGabriel, Statist Minded Ideologue of the Left says:

    @Sly:

    This left [Roberts] no choice but to join the sane justices, who agreed to shift their (meaning Ginsberg’s) initial dissent to a concurrence.

    … And, maybe, to concede some ground on Medicaid? That could explain the moderate wing’s weird split there.

    .

  85. 85
    Alison says:

    @Another Bob: Yes, but they came up with it before that black dude was elected and said he liked it. TOTALLY DIFFERENT STORY NOW.

    Y’know, in their crazy world.

    Fuckers.

  86. 86
    Odie Hugh Manatee says:

    @Yutsano:

    That’s sad. I’m really sorry for you and your family, my condolences to all.

  87. 87
    FlipYrWhig says:

    @Another Bob: IIRC Alito has been described as even more business-friendly than Roberts (I think I read that at Lawyers, Guns, and Money). And even Breyer has a reputation for being more business-friendly than you’d expect a nominal liberal on the Court to be.

    Anyway, my issue with the whole “corporate” line of thinking is that if some bloc of Corporate Interests decided they wanted the bill to stand because it was so good for them, why wouldn’t the whole thing have unfolded much differently all along? Why not yank the chain to get some Republican votes in the first place? Why burn through millions of bucks lobbying against it when all you care about is money? Why not let it be known to one of the other conservatives on the Court that all this trumped-up concern for Liberty! is bullshit, just vote with Roberts and get the whole thing over with?

    If The Corporations wanted this, it wouldn’t have come down to the wire. Some corporate interests were OK with it, some weren’t. Some kinds of “intellectual” conservatives were OK with it, some weren’t. Speculating about the composition of the corporate cabal who have the whole thing obviously rigged — that just seems like a way to enjoy being powerless.

  88. 88
    JWR says:

    I hope I’m not simply repeating something that’s already been said, but as for justices pulling for their side, take a look at “The Brethren” by Bob Woodward and Scott Armstrong. These people are very aware of public opinion, and if Roberts chose this case to avoid tarnishing his reputation, then so be it. Now, it’s time to do what JC says, and fight to keep what we got.

    PS. This is my first ever comment here. Please don’t kill me. ;-)

  89. 89
    kay says:

    @Another Bob:

    Big business fought the law because they will be assessed penalties if their employees are not insured or are under-insured and eligible for a subsidy to purchase on the exchanges.

    People who are eligible for subsidies make 400% of poverty, or less.

    In other words, they are going to have to cover all of their employees or pay the federal government to cover them.

    If they hadn’t have done this penalty scheme, large employers would simply dump their bottom tier of employees onto subsidized exchanges.

    This was behind the whole Catholic health care
    Company complaint. They’re large employers so they’re covered under this provision. They say they can’t provide coverage that meets federal requirements, but they can’t pay the penalty, either, because doing either of those things is a violation of their rights.

  90. 90
    Mnemosyne says:

    @Another Bob:

    Well, but this is what I was saying the other day — they came up with the plan, but they never dreamed it would actually be implemented. They came up with it as a dodge, a reason to block any Democratic attempts to reform healthcare by pointing to their own, superior plan, which somehow was never introduced to Congress for a vote.

    No one was actually supposed to take them at their word and use that plan for anything.

  91. 91
    Mnemosyne says:

    @Yutsano:

    I can’t say anything comforting right now, because we’re starting to suspect the end is near for my father-in-law. Never fun, even when you’ve been expecting it.

  92. 92
    Another Bob says:

    @kay: Most of the big corporations offer health insurance anyway, don’t they? And in Massachusetts, Romney care hasn’t resulted in any real change in the number of employees covered by employer-based plans. Moreover, the administration negotiated with some companies like McDonalds to allow them to continue offering only less-expensive high-deductible plans.

    I understand that it could have consequences for SMALL businesses that have always had trouble insuring their employees, but does the U.S. Chamber of Commerce give a rat’s ass about them anyway?

  93. 93
    kay says:

    @Another Bob:

    It’s not really inconsistent for them to oppose the whole law. They wanted an individual mandate. They didn’t want a federal regulatory scheme that imposes penalties on large employers. They didn’t want federal regulations on health insurance plans. The mandate was not worth those things, and the mandate is unpopular, so they focused on the mandate. They want the whole law repealed.

  94. 94

    @Soonergrunt:

    Other commentary, including notations that Justice Ginsburg’s original opinion was written as a dissent and directly states words to the effect of “The Chief Justice won’t explain why he thinks ACA is not constitutional under the Commerce Clause so we have to guess…”

    Ginsberg’s decision is a dissent – a very well written one, with flowing prose, elegant argument and scalpel-like citations in which she and Sotomayer tell the Chief Justice and Fat Tony and Friends to take their clown car outside and go fuck themselves.

  95. 95

    @Yutsano:

    OT: My uncle just passed away from congestive heart failure.

    My condolences, my dear.

  96. 96
    Another Bob says:

    @FlipYrWhig: I guess, but at some point, don’t even dumbass American corporations have to acknowledge that they, their employees and basically everyone else would be better if we had a decent universal healthcare system? The costs to employers of our current dysfunctional healthcare system must be an enormous drag on their competitiveness, wouldn’t you think?

  97. 97
    Another Bob says:

    @Alison: Agreed: “Fuckers.”

  98. 98
    Another Bob says:

    @kay:

    See Mnemosyne’s reply:

    No one was actually supposed to take them at their word and use that plan for anything.

    Maybe they just never imagined that some stupid Democrat would call their bluff.

  99. 99
    Another Bob says:

    @Yutsano:

    You don’t know me, but please accept my best wishes too.

  100. 100
    kay says:

    @Another Bob:
    It isn’t just “large corporations” 100 employees isn’t a large corporation. They have to offer a plan comparable to that which an employee could purchase w/a subsidy or pay the cost of the subsidy.
    Low wage employers that offer crappy
    plans got a temporary reprieve to avoid interruption of coverage.
    There’s really wide variance btwn employers in terms of the coverage they offer. This standardizes coverage at the federal level.Of course they hate that.

  101. 101
    Mnemosyne says:

    @Another Bob:

    Moreover, the administration negotiated with some companies like McDonalds to allow them to continue offering only less-expensive high-deductible plans.

    It’s a temporary waiver to allow them to get new plans online — the waiver ends in 2014, when the exchanges come online. So they’re not exempted, but they do get extra time to get everything organized.

    I do wonder about businesses like McDonalds that operate on a franchise model — have they been letting their franchisees opt to not offer insurance at all, and now they have to get everyone in line to offer the minimum?

  102. 102
    RadioOne says:

    I’ve never understood why anyone believes that the Supreme Court is not inherently a political institution. Look at it’s history. There have been so many different legal precedents handed down that justices have been completely free to pick and choose for centuries.

  103. 103
    Another Bob says:

    @RadioOne:

    There have been so many different legal precedents handed down that justices have been completely free to pick and choose for centuries.

    Yeah, in that regard I’ve imagined that it might be like being a high priest in some religion, where you have passages in a holy book that can justify everything from circumcision to polygamy to genocide. You can pick a moderate or extreme interpretation of scripture that fits what you wanted to do anyway.

  104. 104
    Another Bob says:

    @kay: Well then I guess there’s no reasoning with them. Just hold their feet to the coals and maybe they’ll do the right thing.

  105. 105
    kay says:

    @Another Bob:

    If you’re a large employer, 150 employees, say, and you had NO legal obligation to offer any health insurance at all, and now you have to provide a certain level of coverage or pay a penalty, are you going to be happy about this
    law?

    As far as small business (I am a small business, we have two employees) it’s all upside as far as I can tell, but large businesses? Not so much. It’s a new federal regulatory scheme. Of course they hate it.

  106. 106
    Another Bob says:

    @Mnemosyne: It’s probably like a lot of things — they’ll bellyache about it and act like it’s the end of the world, but then they’ll adapt to it and pretty soon it will be as normal as payroll taxes. I mean, nobody likes paying taxes, but even Republicans mostly accept it as a fact of life. And the new plan does at least have a reasonable potential to “bend the curve” on healthcare cost increases, which will probably save them lots of money over the long term compared to keeping the status quo.

  107. 107
    Darkrose says:

    @Yutsano: My condolences to you and your family. Even when you know it’s coming, it’s still hard.

  108. 108
    Yutsano says:

    @Sarah, Proud and Tall: Thank you hon. Still need to disclose to wifey.

  109. 109
    Triassic Sands says:

    I’ve been a bit mystified by all the insistence that Kennedy was the justice most likely to defect…on this case.

    Yes, he’s sided with the lefties on some cases in the past, but leading up to this case, I heard knowledgeable commentators remark frequently that Kennedy had not been friendly to the more liberal positions on commerce clause issues.

    Then, I listened to the oral arguments and I heard no sign that Kennedy was open to upholding this law. Roberts, too, sounded hostile, but alone among the justices Roberts has his name tied, for all time, to big cases. It is, after all, the ROBERTS Court. Some have argued that Roberts sided with the lefties out of concern for the institutional reputation of the Court. I felt that he was the only hope the left had, but that if joined the left it would be because he was worried about his name being tied to a blatantly partisan political decision (that would be ridiculed in history books and eventually be reversed — either by a future court or by Congress) that would prevent tens of millions of Americans from having desperately needed health insurance. There is nothing abstract about this decision — just like there will be nothing abstract about what happens to Obamacare if Romney wins and Republicans control both houses.

    I think Roberts blinked. In the future, I think he will return to the Winger fold, perhaps even emboldened, now that he’s proved he is willing to side with the left on an important case.

  110. 110
    mdblanche says:

    The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.

    Damn your face! We’re cutting off our noses just to spite it.

  111. 111
    ruemara says:

    @Yutsano: Deepest condolences to you and the family. I’m very sorry.

    I don’t think I understand Kennedy’s vote against, based on this article. His vote should be against the mandate, not the whole law, because nothing he’s said was about severability. His no vote is still bizarre.

  112. 112
    kay says:

    I don’t actually follow the supreme court closely.

    Is this weird and new, these leaks and drama after big cases are decided?

    Because this is two. There are unconfirmed stories on Citizens, machinations, a desperate plan to NOT release a stinging dissent, etc.

    Is this normal, or are conservative lawyers attention-starved drama queens?

  113. 113
    Insomniac says:

    @Yutsano: Sorry to hear that. Condolences to you and yours Yutsano.

  114. 114
    John Casey says:

    A proposed constitutional amendment to fix the Supreme Court:

    “The Chief Justice of the United States and the other Justices of the Supreme Court shall each be appointed by the President with the advice and consent of the Senate for a term of 15 years. No one shall serve more than one such term. The Senate shall have 90 days to consider the nomination of a Justice or the Chief Justice; if the Senate has not acted upon the nomination in that time, the Senates consent to the nomination shall be deemed to have been given.”

  115. 115
    Pat says:

    I have one wish for those Justices and anyone else who considers the ACA unconstitutional and it is this: Because we all have to die someday, may your death be the most lonely and painful experience imaginable, Motherfucker. And this I mean with all my heart.

  116. 116
    pablo says:

    I’ve got this all figured out.
    This was going to be the coup d’etat moment for the fascists wing of the court, but Roberts, the one with the long view, got cold feet, and backed off, he realized that the unsupported overturning by 5 justices would be too much, too fast.
    He threw in the Commerce clause bullshit to placate the four, and let them know that they will live to fight another day, instead of throwing away the courts legitimacy in one swell- foop!*

    *I know.

  117. 117
    Johannes says:

    @Yutsano: Very sorry for your loss, Yutsano. Your uncle and your whole family are in our thoughts at chez catz.

  118. 118
    Matt McIrvin says:

    @Tara the Antisocial Social Worker:

    That was, exactly, my first reaction to reading about Michael Savage’s rant. Oh, no, the Chief Justice’s epilepsy is giving him dangerous empathy for people with chronic medical conditions!

  119. 119
    Todd says:

    @gopher2b:

    Optimistic me thinks Roberts’s vote is the first sign of the “fever breaking.”

    Could we be seeing the birthing of a new Earl Warren?

  120. 120
    Todd says:

    @gopher2b:

    Optimistic me thinks Roberts’s vote is the first sign of the “fever breaking.”

    Could we be seeing the birthing of a new Earl Warren?

  121. 121
    Matt McIrvin says:

    @kay: Note also, companies with 200 employees think of themselves as small businesses, in much the same way that people making $200,000 a year think of themselves as middle-class. These firms are gigantic compared to a 12-employee company, but they’re tiny compared to Microsoft or GM, and the latter is what they see.

  122. 122
    Ben Cisco says:

    @Yutsano: Sorry to hear of your loss. S’ti th’laktra (I grieve with thee).

  123. 123
    bob h says:

    In the oral arguments Kennedy gave a gratuitous homily about “freedom” and “liberty” that could have been dictated by George Will, and I knew there would be trouble.

  124. 124
    Omnes Omnibus says:

    Ultimately, there is a point at which it doesn’t matter if the Court functions as a purely political animal or not. Once enough people perceive it that way, the loss of legitimacy happens. Lawyers still need to figure out what the Court said and why so that they can formulate arguments for future cases, but Supreme Court decisions won’t be seen as having resolved anything anymore. If the opinions of people commenting on Balloon Juice on this issue are at all representative of those of the general populace, then this point has already been reached.

    @Yutsano: My condolences to you and your family.

    @Todd:

    Could we be seeing the birthing of a new Earl Warren?

    No, Roberts is still a right-wing judge.

  125. 125
    Bob2 says:

    I am sad that eemom has not come back because I wanted to see her react to this.

  126. 126
    kay says:

    @Matt McIrvin:

    It’s probably not actually valid to continue to say that ‘it’s the Heritage plan, so they should support it”. Democrats will continue to say it, and they should, but it’s not the whole story.
    The individual mandate is a conservative idea. They’re hypocrites there. That part is true.
    Would Heritage have promoted a federal scheme to regulate health insurance policies or a new requirement for large employers? No.
    The PPACA is much bigger than the idea behind the individual mandate.
    One could easily support an individual mandate and oppose the law.
    It sort of doesn’t matter, though. Mitt Romney is way too cowardly and craven to make his actual, true argument, and Lord knows political media will never figure it out.

  127. 127
    Someguy says:

    “Kennedy is Strong on Federalism” = the right to hang negroes from trees on ropes follow brief, informal marsupial judicial process.

  128. 128
    Sasha says:

    I got the impression that Roberts was potentially okay with declaring the mandate unconstitutional, but not remotely so with striking the whole law down as a result and that was the ultimate fault line between him and the other RW justices.

  129. 129
    RaflW says:

    Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.

    This childishness is amazing. The playground bully four are behaving just like the shitty Congressional GOP. And those arseholes have about a 10% approval rating.

    It would seem that the millennial insanity that grips nations is about 5 years behind schedule but making up for it with extra intensity. I’m not sure we’ll recover from this one.

  130. 130
    RaflW says:

    @kay:
    Re: the drama an leaks, it would seem to me that this is the result you can expect in a bitterly divided and highly partisan S.C.

    Decorum is breaking down there just as it is in many institutions. When a court such as this is perilously close to facism (and Citizens United reaffirmed by Montana really is, IMO, a hair’s breadth from de facto facism), I’d expect there are some inside who are willing to forgo etiquette to help bring attention to the risks, dysfunction and factionalism at hand.

  131. 131

    […] wasn’t the liberal media — it was the conservative justices & their media henchmen. John Cole thinks the CBS report betrays a strong pro-Kennedy bias. Share this:TwitterFacebookLike this:LikeBe […]

  132. 132
    Jodi says:

    @Brian S: Yeah, that jumped out at me too, especially since Kennedy is such a paternalistic believer of the bogus post-abortion syndrome, and that “some women come to regret their choice.” Kennedy may be a champion of individual freedom, but that does not extend to the 50+% of the population whose right to make health decisions are limited by their supposed inability to determine what is in their best interest.

  133. 133
    liberal says:

    @catclub:

    Who gives a crap about the first part of the second amendment anyway? Just con-law wienies.

    Agreed.

  134. 134
    chopper says:

    @Sarah, Proud and Tall:

    ginsburg’s dissents are always brutally well-written.

  135. 135
    liberal says:

    @chopper:
    Yeah, but she must have one hell of an ego not to have resigned early in Obama’s first term. Same with Breyer.

  136. 136
    Bulworth says:

    And if I had to bet, it was Kennedy’s people who leaked all this, because most of that Crawford piece reads like a mash note to him:

    Truly. “Kennedy is So Principled!” Beh.

  137. 137
    David in NY says:

    @kay:

    Is thisweird and new, these leaks and drama after big cases are decided?

    I think pretty much. I hear there was a bit of it after Bush v. Gore, but I don't recall it, and it can't have been anything like this. The business about Souter and Citizen's United didn't come out until well after the decision and is really an odd circumstance, involving a retiring, then retired, Justice.

    This, I think, is new. The disappointed minority's night of the long knives. However titillating, it is even more disturbing, for it shows the radicalism of that group, a minority here, but all too often a majority.

    Their radicalism is shown as not merely a new and bizarre set of constitutional doctrines. It is a total lack of respect for current institutions, in this case the Congress, the President, and most seriously the Court on which they sit. They are knee-capping the Court itself by this loose talk, showing that they disdain not only its precedents but the code of conduct expected of Justices.

    It is perhaps this latter that is the most problematic, for a good part of the Court's procedures depends on somewhat amorphous rules. For example, the rules of 4 and of 5. It takes only four votes to get a case to the Court, but, in theory, the opposing five could then immediately and summarily dispose of the case without briefing or argument, fundamentally doing away with the rule of 4. That this is not done is part of the code the Justices follow. But once the code breaks down, the institution is put at great risk, for it depends on cooperating and agreement on fundamentals, which seems to be breaking down. (And cf., the Senate and the filibuster).

  138. 138
    denali says:

    My take on this is that Roberts used the tax meme to get the attention of the public’s dislike of new taxes and thereby to gain support for legislative repeal of the ACA. He has not changed his stripes. Very smart.

  139. 139

    […] his ideology. The decision he made is laughably weak in its reasoning, and the fact that the court is mysteriously leaking all of the details behind its usually secretive internal decision-making process only strengthens the theory that […]

  140. 140
    rumpole says:

    The court is notoriously leak-free, and I hope they find the clerks that did this (’cause it was the clerks–it’s unlikely that anyone else would know that level of detail) and string them up. I’m not a fan of the personalities in the conservative majority, but this strikes me as a really bad thing as it completely delegitimizes the results of these decisions. Maybe they deserve to be delegitimized, maybe not, but this kind of leaking will do more harm to the Court as an institution than Bush v Gore. If I were the Chief (or one of the liberals, or one of the conservatives that did not leak), I would be on the warpath.

    This is, sadly, not terribly surprising. There’s a book called Closed Chambers that predicted all of this in that it described the ideologically based hiring process of the conservative majority, and how they were screened for temperament. If the book is right, many (most) are zealots.

    Also, too–Kennedy’s supposed “brilliance” in Alden v. Maine has been picked apart both by historians, and by other federal judges. there’s a 9th circuit reagan appointee that looked at their work in this area after they reversed union gas (hint–the review is not flattering).

  141. 141
    TenguPhule says:

    but this kind of leaking will do more harm to the Court as an institution than Bush v Gore.

    There are some Tunch levels of Irony there.

  142. 142
    Heliopause says:

    Not sure if this link got posted yet, but out of dozens and dozens of decisions Roberts has only sided with the “liberals” once, fewer times than Scalia or Thomas. Funny how quickly you become an antichrist to movement conservatives.

  143. 143
    Will says:

    @gopher2b:

    “advisory opinions”

    Good point. It is that issue that lends the whole ruling a sloppy ad hoc feeling that reminds me of the Dred Scott debacle.

    It also bears noting that the administration made an unforced error by orphaning the “tax power” argument and betting it all on the commerce clause.

  144. 144
    Raya says:

    @Brian S: Yeah, no kidding. This: “In fact, if there’s an issue of an individual versus invasive government, Kennedy sides with the individual” — is either a load of crap, or “individual” is a strictly masculine noun. Kennedy specifically believes that women are not rational enough to make their own decisions about abortion.

  145. 145
    Raya says:

    @Brian S: Yeah, no kidding. This: “In fact, if there’s an issue of an individual versus invasive government, Kennedy sides with the individual” — is either a load of crap, or “individual” is a strictly masculine noun. Kennedy specifically believes that women are not rational enough to make their own decisions about abortion.

  146. 146
    Raya says:

    Crap, sorry for double post. Bizarre computer error. Here’s a link discussing just how much Kennedy respects women as individuals: http://www.slate.com/articles/....._best.html

  147. 147
    jomike says:

    @Brachiator:

    Walter Dellinger, too, pretty much called it perfectly back in March:
    http://tpmdc.talkingpointsmemo.....e.php#more

    Dellinger tamped down on some initial criticism’s of his successor’s performance before the court. And, crucially, he highlighted an exchange that occurred on Monday — one we broke down here — in which Chief Justice John Roberts appeared to reject the cornerstone of the challenger’s argument. “Yesterday the Chief Justice said that it doesn’t make much sense to say that the mandate is separate from the penalty or the tax,” Dellinger said. “He seemed yesterday to have accepted the government’s argument that there’s a real choice here. If you don’t want to have health insurance that you can pay the tax penalty.”

    It could be that Roberts never “flipped” as conventional wisdom would have it. Scalia & Kennedy may have drafted their opinions while operating under the (mistaken) assumption that they’d be able to persuade Roberts to their side. When that assumption turned out to be incorrect, the “Roberts flipped” meme got leaked as a face-saving measure.

  148. 148
    David in NY says:

    @jomike: My thought was that Roberts provisionally voted with the ultimate minority on the assumption they could convince him that it wasn’t a tax and, perhaps, that they would only strike down the mandate. The minority didn’t even try to do the former and went full bore on the latter. If Roberts changed his vote, it didn’t mean he changed his views at all — just that the minority opinion didn’t satisfy them.

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