Monday, July 2, 2012

Some more thoughts on what went down this past Thursday

Leading up to last Thursday's Supreme CourtObamacare Obamatax decision, we read and shared via this blog and Twitter all manner of wailing and nashing of teeth from the left* regarding the perceived politicization of the Supreme Court** ahead of what conventional wisdom held was going to be a striking down of the mandate, if not the entirety of Affordable Care Act.

Alas, the entitlement gods intervened and apparently spoke to Chief Justice John Roberts in order to convince him to side with the liberal wing of the Court to not just uphold the mandate but to reason it with a judicial flourish: Obamacare Obamatax stands not via the commerce clause rather Congress' ability to levy taxes on the citizenry.

Shortly after the decision was rendered, there was buzz that Roberts switched his vote at the last minute from striking down the mandate and the law to supporting it. But why?

Go to the link here at the Volokh conspiracy which has the transcript from Sunday morning's Face the Nation and prepare to have your mind blown.

From the transcript:

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Unreal. Go read the entire thing for some Inside Baseball stuff regarding the tug-of-war between the justices over the decision. We may never know just what motivated Roberts to switch his vote but a simple connect-the-dots lends itself to a Occams' razor conclusion.

We can offer no penetrating insight to Roberts' logic, however, if he were to uphold the mandate and the law in its entirety based upon principle and on the grounds that Congress could enact this law because it had the constitutional power to tax the people, then fine. We may disagree, and we do, but we would rest easy in thinking that Roberts reached this conclusion absent outside influence.

But it appears he didn't. How could he reach the conclusion that the law could not stand on merits of the commerce clause yet stand whole on the issue of taxation without submitting to outside pressure? It's too clever. That reasoning represents a judicial dodge of historic proportion.

That Roberts reached this conclusion to supposedly preserve the integrity of the Court is preposterous. In wishing to shield the Court from charges of politicization, he succumbed to the very politicization of external influences in rendering a decision that was too cute by a half.

That it even appears that Roberts caved to outside pressure probably bothers us more than Roberts' actual ruling on Obamatax. We thought that was the whole idea behind life-time appointments - that Justices would be insulated from the politics surrounding that which they are passing judgement.

We know no political system is perfect and our system of checks and balances and separation of powers via our constitutional republic isn't perfect because its stewardship is in the hands of flawed people, be they elected or appointed but the system gets a whole lot less perfect when those stewards do not practice nor adhere to the intentions of our constitutional republic.

* No true good-government liberal could support this law. It is corporatism, writ large. We're coming around to the opinion that there are no more liberals, only leftists.

** For all that bitching the left has done, can anyone name the last "liberal" judge that has drifted rightward?


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