Chief Justice Roberts and Political Orthodoxy
Posted on July 3, 2012 Posted by John Scalzi 177 Comments
It’s not an exaggeration to suggest that the Supreme Court holding that the ACA is in fact constitutional (albeit on novel and narrow grounds that no one expected to be used, i.e., the Congress’ power to levy taxes) represents the biggest political blow to the current distillation of right-wing ideology that it’s had in some time and possibly ever. The blow was made even more psychologically damaging by the fact that it came at the hands of the previously doctrinally reliable Chief Justice John Roberts, who penned the opinion upholding the law, on which he was accompanied by the court’s four more left-leaning judges and none of the four right-leaning ones. Roberts, formerly one of the golden boys of the right-wing orthodoxy, has been pushed out of that position with all the force and rage that comes from, well, not being the performing monkey that the current crop of right-wing ideologues thought that they had installed into the Chief Justice position. Roberts, in short, went rogue, and that is unforgivable.
Let’s make no mistake about this: the reason that the ACA was driven to the Supreme Court with the alacrity that it was by the right wing was because at the end of the day it fully expected the court to strike it down. As much as right wing politicians like to mewl about activist, unelected judges when they don’t get their doctrinal way, they’ve also spend the last couple of decades doing everything they can to get as many of their doctrinal bedfellows into the judiciary as possible. Nowhere has this been more the case than the current Supreme Court, which some observers judge the most conservative Court since the 1930s.
But more than conservative, the Court is supposed to be reliable — that is, adhering to current right-wing orthodoxy regardless of that orthodoxy’s relation to classical conservative principles. When the ACA was marched into the Supreme Court, from the right wing point of view it was there to be killed; the legal reasoning of the killing was less important than the 5-4 vote the right wing fully expected it had to exercise its will.
Well, it got a 5-4 vote, all right. It even received what I would consider a classically conservative ruling — is there really an argument that the Congress does not have enumerated in its Constitutional rights and duties the ability to levy taxes? What it doesn’t have is a victory. And ultimately the reason that it does not have a victory is because the right wing forgot what many orthodoxies forget: That in the end, people aren’t machines that do what you want them do when you press the right button. They are human beings, and human beings have (or at the very least have the potential for) agency, i.e., they have their own brains, have their own agendas and can make up their own minds. Which in the end is what Roberts did.
And which, it should be noted, he is supposed to do, Constitutionally speaking. The Founding Fathers, in their wisdom, gave federal judges life tenure. One reason for that was to insulate these judges from the current fashions and passions of the political fray and to give them their own heads about things. Judges are not immune to politics, of course, especially if they want to move up and dream of a Senate confirmation hearing sometime in their future. But it’s also equally true that once you’ve had the confirmation hearing and passed it, you’re gone as far as you’re going to go. John Roberts is the Chief Justice of the United States. It’s a terminal position, employment-wise — which means there’s no one who has any lever they can wedge in to get him to move the way they want to. He’s on his own recognizance. He has his own head.
Former Bush speechwriter Marc Thiessen recently kvetched in the Washington Post, wondering why it is that Republicans are “so bad” at picking Supreme Court justices, i.e., why they drift from their expected positions and start voting in ways that are not doctrinally reliable. Leaving aside the fact that the right wing of the US has shifted itself politically to such an extent that even Ronald Reagan (the real one, not the icon) couldn’t pass its current sniff test, the answer is more correctly, why is Thiessen so oblivious that he doesn’t understand that the power of political orthodoxy is its ability to force its members to comply — and that the Supreme Court is designed to sever its members from such threats of force? That’s why they drift. And the more strait-jacketed your orthodoxy, the greater the chance of drift. There’s no doubt that currently the right wing is about as orthodoxically strait-jacketed as they come.
I don’t think there’s any question that Roberts is a conservative judge; a look at his track record and even at his ACA write-up makes this abundantly clear. I don’t think there’s any question that Roberts will continue to be a conservative judge. What the ACA ruling serves notice for, perhaps, is that Roberts is following his own conscience and reasoning regarding what it means to be conservative, rather than taking his cues from the the current right-wing orthodoxy. Ultimately, that’s what sending the right wing into their rage about Roberts: That now it’s possible he’s his own man, not theirs.
A year ago Larry Tribe had an Op-Ed in the New York Times suggesting that
He was far too sanguine, but we lucked out anyway.
Supreme Court still comes off as way too political. Seems like so many institutions that used to be worthy of respect have fallen on partisan times.
Oh, and see Ruben Bolling’s “Tom the Dancing Bug” today.
Excellent and insightful article John.
I’m going to pick a nit only because it reinforces your point:
The Chief Justice’s title is actually Chief Justice of the United States. Full stop.
Novel and narrow grounds? Hardly. I suggest reading groklaw’s summary of the decision, where it’s pointed out that the government argued that it was either a commerce clause power or a taxation: http://www.groklaw.net/article.php?story=20120630110614135
Yeah, pretty much. I think I got this quotation from my Con Law prof: “The Supreme Court isn’t 4-4-1, it’s 1-1-1-1-1-1-1-1-1.”
One can debate whether Chief Justice Roberts had his own moment of “the switch in time that saved nine,” and whether the ruling would have been the same had he been an associate justice (as I’ve seen the argument go, because he’s the Chief, he is a bit more aware of politics and political pressures, and this could have broken the Court for some reason–that part’s less clear, I think), but you’re right about the simple fact that, with life tenure, Roberts can make his decision, not the decision of the people who got him confirmed.
(This does, of course, cut both ways. Justice White, for example, was nominated by John F. Kennedy, but dissented in Miranda v. Arizona because, having been a Deputy Attorney General, he felt differently about the balance. Similarly, White joined the majority in Sierra Club v. Morton because there just wasn’t standing. He wasn’t happy about it, either: “Why didn’t the Sierra Club have one goddamn member walk through the park and then there would have been standing to sue?”)
Yes, thank you, I agree completely. Supreme court judges in general, whether they were appointed by Republican or Democratic presidents, have a terrible record for obeying their party’s instructions on court rulings. It’s as if they are somehow not accountable to a particular political party, as if they are actually interpreting the law to the best of their ability. IMAGINE THAT. Must be infuriating to people whose first loyalty is to their political party, not their country. There was a particularly silly interview on the radio with someone who had an elaborate interpretation of how Roberts was playing some kind of conservative long game. No, not really. He just made the decision he thought was right. Why is that so hard to understand?
Thanks for the nitpick; edited to fix.
(1) I’ve seen papers that use Statistics to analyze U.S. Supreme Court decisions, find correlations between justices, and plot graphs of distributions along several axes. There are fewer than 9 dimensions to that space.
(2) Orthodox, or Paradox?
This is, IMHO, an example of the long-thinking wisdom the founding fathers employed. As deeply flawed as the American political system can seem at times, it works better than most every other system out there in situations like this. The SCOTUS is insulated against certain political strong-arming, which is why congress fights every appointment so stringently.
Once on the court, a justice can vote according to their doctrine, not the strict ideology of a specific party. The classic example, of course, is Earl Warren. Eisenhower thought he was putting a staunch conservative on the SCOTUS, but instead got the Warren court, who gave us Miranda Rights, Brown I and II and things like guaranteed legal representation for defendants. [side note: it’s kind of shocking to realize how many parts of the American legal process are relatively recent additions to the law…to me, anyhow. I’ve always assumed some of these rights were much older than they actually were.]
It was actually kind of refreshing to me to see someone on any level of politics go against thier parties wishes and think for themself. It is something very rare, on either side of the aisle, though you seem focused on the idea that only Republicans are capable of narrow minded political orthodoxy. I wish it would happen more often, Then I might actually be able to trust the things any of these people say.
That now it’s possible he’s his own man, not theirs.
As a Conservative, this is what I most liked about his selection to begin with. I wanted someone who would be more likely to uphold the Constitution than any political ideology or party.
“though you seem focused on the idea that only Republicans are capable of narrow minded political orthodoxy”
That’s not what I said, actually, or what I believe. However, I do believe that in this moment in time in American political thought, the right wing values (and expects) orthodoxy more than the left wing does. It’s entire possible at a later point in time these things could be reversed (or that there is less orthodoxy on both sides of the spectrum — or more).
Mr. Scalzi, at some level I think your post is coming down on the side of the tyranny of the majority. The constitution does limit and enumerate the powers of government, and leave rights to individuals. It is reasonable for a question to be asked and settled: is it within the rights of the federal government to incentivize the purchase of a product? In reality, government already has incentives in the tax code, e.g., for the purchase of real estate (and, ironically, health insurance). So it would be ironic for the federal government *not* to be able to change the deal, as it were, and strengthen that incentive.
I am disappointed at those who generally share my political persuasion who think that the powers of the federal government are limited to those actions that they agree with politically.
I am also disappointed at the trap being played out in the media coverage of this decision as well. In addition to having limited and enumerated powers, we are also a country of laws. The Chief Justice’s decision to uphold the law is being portrayed in the media as a means to preserve the institution of the court, to try to depoliticize it. *If* that is true, then I would consider it an unfortunate betrayal of trust, since the law is not standing on its own merits but the political context. If, however, it is false, the media portrayal of this issue undermines the concept of the rule of law, and only serves to increase the politicization of the court.
I only wish there were some moral equivalent form of discourse to the past decision on eminent domain (http://www.freestarmedia.com/hotellostliberty2.html) where we could easily extend the principle on which the ACA was upheld to a more extreme conclusion
I fully agree with your post, John.
Also, as far as whether Congress had the power to levy taxes, wasn’t that one of the main reasons that the old Articles of Confederation weren’t working so well – that the US wasn’t allowed to levy taxes? I could be wrong; it’s been awhile since I read about that time period’s history.
I have to tell you that I (as a moderate republican) respect the hell out of John Roberts for his decision. His stance added a lot of credibility to the ruling that it would have otherwise lacked. In the end, if he would have voted against ACA, it would have been just another partisan decision. I daresay that constitutionallity wouldn’t have been an issue at all if all the conservatives lined up against the liberals. If that happens, you’re not debating the law, you’re debating ideology and morals.
If more people had the balls to do what was right (ie. not play politics and rule strictly on whether or not the law jives with consititution), our country would be in a better place. I think Roberts singlehandedly saved the Supreme Court’s credibility. I was watching CNN, and they had poll numbers up. Before the ACA ruling, the supreme court’s approval rating was in the 40s. After the ruling, its up in the low 70s.
This has been a problem with Presidents for longer than we tend to remember–FDR tried to “pack” the Supreme Court with more members to get them to quit finding all his New Deal legislation unconstitutional (quite unsuccessfully, as it came out). Eisenhower appointed Warren, as someone pointed out earlier, only to regret it when the Warren Court started coming down with “liberal” decisions he disagreed with (particularly in the civil rights area).
In the legal biz I’m in, a number of acquaintences have become judges, either through election or appointment, and it is amazing how their views change after being on the bench for a while. It comes with the territory and the Right in this country needs to remember that the Court isn’t there to backstop their ideology (well, excepting Scalia and Thomas…).
I know it’s not what you believe, John. I certainly wouldn’t keep coming here every day if you were an extremist. I can’t stand the extremists on either side. A younger and stupider me got caught up in the orthodoxy bullshit in the 90’s when Clinton was in office. I even delighted to what Rush Limbaugh had to say back then, until I started to realize how much he was distorting the truth. Then I was disgusted at the joy that was taken in shitting on everything Bush said or did, whether it deserved it or not. I foolishly hoped that the conservatives would not stoop to the same levels these last four years, but they have, and have even trotted out all kinds of new crazy this last year.
I think the Orthodoxy swings with who is the current President. I don’t know how we can ever get away from it, but untill those of us who aren’t politicians or pundits start to see how full of shit all these people are, even if we agree with what they are saying, and don’t let them get away with lying to our faces all the time, I don’t think anything in this country is going to get better.
This all has little to do with your original post of course. I really need to stop commenting on these political ones. The whole collective group of idiots in Washington disgust me so much that I can’t really discuss these thing rationally.
I agree with your post, but have a nit of my own to pick – it’s properly a “strait” (narrow, confining) jacket, not a “straight” jacket, which makes no sense for any normal meaning of “straight.” I don’t doubt that there are dictionaries that accept “straight,” but it’s not the original version.
I’ll fix that.
Roberts voted based on JUSTICE and NOT the LAW.
Surprised the crap out of me.
Nicely analyzed and written, John.
I’m very pleased that the ACA was upheld, but I worry that it was upheld based upon Congress’ authority to levy taxes. It may be correct, but I worry that it will bolster anti-tax feelings and lead some conservatives to shift their allegiances to the Tea Party, giving them more power.
Mr. Scalzi, to paraphrase you from yesterday: “Chief Justices are quirky and don’t always work the way they’re supposed to.” ; )
Also, “there is nothing new under the sun.” Certain human begins and certain groups of humans have always misused the established system in order to accomplish their own agendas, and they always will. Thankfully, the occasional rogue human is not new under the sun, either, and will turn against the agenda stream and use his or her brain for him- or herself. What a relief.
Some news organizations and writers have pointed out that the decision is actually closer to conservative ideology than realized at first glance, specifically as it relates to the commerce clause. It was pointed out that in the decision there was a secondary decision that limited the ability of the federal government to apply the commerce clause, which its been expanding for the last 30 years as a method to exert control over the states. When you look at the decisions, the 4 “liberal” justices actually said they agreed with the government’s application of the commerce clause, while the 5 “conservative” justices (including the Chief Justice) disagreed with the application of the commerce clause and in their written decisions definitely limited it. The only reason it got upheld was the Roberts’ decision that Congress’ tax powers applied, and the “liberal” justices signed onto that decision, while disagreeing that the commerce clause *didn’t* apply. Limiting the use of the commerce clause has been on the right-wing agenda for a while now. Roberts’ decision, to me, seemed more about finding a way to avoid overturning a law passed by Congress and thus avoiding charges of “judicial activism” (a misnomer if I ever heard one, isn’t that the Court’s job, to strike down laws that are found to be unconstitutional, how can we castigate them for doing the job they were appointed to do?) by the left, while supporting the conservative agenda at the same time. It was a win-win for him politically. The court gets approval for avoiding charges of activism, the court appears more neutral in a partisan environment, and the federal powers under the guise of commerce get limited.
Roberts: That now it’s possible he’s his own man, not theirs.
Still, it would be nice if we could get at least one truly progressive-thinking judge on the court in the next year or two.
Well I have to admit that I was completely surprised that the law was upheld mostly because I was focused on the Commerce Clause authority as being completely invalid. Then I read the decision and found I agreed with his reasoning.
There are many on the Right who claim he had to change the law to uphold it because nowhere is the “mandate” called a tax. Ultimately it doesn’t matter if congress wants to call something a tax or not, Justice Roberts looked at the effect and by doing that he concluded it was a tax. And to my mind this is the correct way to approach it. I mean why believe politicians, right?
Others on the Right wing claim he changed his opinion to “preserve the standing of the Court.” but I have another explanation. I think that at that first conference after the oral arguments, when the Justices vote, he was indeed on the side of the conservatives because it was such a clear overextension of the Commerce Clause he felt he needed to set the boundary. And at that Cinference he assigned himself to write the majority opinion. Then he began writing it and discovered that he had a path to uphold the law (which should always be the default bias) while at the same time being able to strike down the Commerce Clause argument.
This is not an unreasonable conclusion. We know that there have been many times in the Courts history where the Justice assigned to write the majority option sat down to do so and just couldn’t make it work and so switch their vote.
And while its unlikely I’ll never know for sure, I think this is more likely than what Roberts’ critics have presented.
And I’d point out one more thing; Roberts only is aligned with the Left side of the Court in the judgement, not the opinion. Or I should say the left side of the Court concurred with the Judgement but did not join in the Opinion. When you look at Justice Gibsburgs concurring opinion they were furious with his Commerce Clause reasoning.
But the Chief Justice’s written opinion is the controlling opinion. And I can live with that just fine.
I know I left my Pom Poms and choir robe around here somewhere…..
Completely agree with this. It might amaze current conservatives and Tea Partiers to realize that the Mandate in the current health care bill was an extremely republican idea right up until it was to be implemented. So one way to look at this is as a contest between older conservatism and new conservatism. The only justification that liberals have for seeing this as a win is because even this fairly conservative law seems like it will be better than the status quo.
10 years ago, Roberts would have been right on the money by republican reckoning.
I think part of the reason the right is so exercised over justices “growing” in office is that it only happens to their side. You could perhaps argue “Whizzer” White on the left (although that’s really based on only a couple of rulings and he isn’t exactly current news) but the right has Warren and Brennan and Stewart and Stevens and O’Connor and Kennedy and Souter and now Roberts. The examples of justices appointed by liberals breaking with their ideological orthodoxy are few and far between.
As Dave Branson pointed out, the fact that Obama and the Democratic Congress tried to muddy the waters by claiming the individual mandate was not a tax when passing ACA, the Supremes found otherwise. I don’t think this is making the Democrats happy because they typically like to justify the expansion of federal government power under the Commerce Clause or the Necessary and Proper Clause without admitting that part and parcel of their expansion of federal government power includes raising taxes on everyone. I have to admit I think Roberts truly called it as he saw it.
I think the thing that frustrates most Republicans is, when it comes to the nomination process, conservative jurists are absolutely not allowed to utter one peep about a belief in the originalist or strict constructivism in interpreting the Constitution, lest they get filibustered to death by Democrats and the media while liberal, activist judges can freely expand on their loose interpretation of the Constitution without worrying about getting slandered as extremist in the media or by Congress. Furthermore, the left can expect, for the most part, for judges nominated and confirmed by Democratic judges to vote their interests. You will rarely or never see Ginsburg, Sotomayor, Kaplan or Breyer join a decision that would uphold a death penalty conviction, for example. The left loves to invoke stare decisis, but only when it favors their causes.
oops, I mean Democratic presidents…Proofread fail!
I’m still mourning the loss of my friend, mentor, and 4-time co-author Ray Bradbury. But I can practically hear him laughing when he told me: “I’m in the Radical Center!”
@Watchmen: Saplings grow faster than more mature trees do.
Ignoring the politics of Obamacare, I have issue with the newly minted powers of Congress to tax citizens for not doing something. I understand a tax on things we do, purchase, etc, but taxing a person for not buying a privately offered product or service? Where does that power end? Jumping to extremes what legal recourse would citizens have if say The US Government said, “You do not buy a GM vehicle? $2000 tax then” I have read nothing in the ruling that limits their power in this regard.
@ Christopher Scaffer: “I think the thing that frustrates most Republicans is, when it comes to the nomination process, conservative jurists are absolutely not allowed to utter one peep about a belief in the originalist or strict constructivism in interpreting the Constitution, lest they get filibustered to death by Democrats and the media while liberal, activist judges can freely expand on their loose interpretation of the Constitution without worrying about getting slandered as extremist in the media or by Congress.”
That’d be a lot funnier if there weren’t so many people who actually think it’s true.
have issue with the newly minted powers of Congress to tax citizens for not doing something
Newly minted? I think not. There’s a lot of taxes and tax breaks related to things that some people do and others don’t. I can think of one massive tax break people get for doing that because my wife and I can’t (and didn’t want to before we found out we couldn’t) that costs me more than a similar couple with one or more of the things they’ve elected to have.
At least with Healthcare, you WILL use it sooner or later unless you’re very very lucky.
I know I’d have probably died at 14 without swift surgical intervention to remove a rotten Appendix.
@ Bearpaw – you have heard of a fellow named Bork, I suppose? He was the last conservative jurist to openly talk about strict constructionism at his nomination hearing. Ginsburg, at her nomination hearing, openly professed her support for a right to abortion with nary a peep of protest of objectivity.
There’s a CBS News piece (http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-health-care-law/?tag=contentMain%3BcontentBody) that uses some insider information (or purports to, anyway) about the judicial conferences to fill out some of the thinking that went on. For example, it describes how the schism between Chief Justice Roberts and the dissenters was so severe that they refused to join (or even reference) the parts of his opinion that addressed the Commerce Clause, meaning that nothing truly controls in this area.
On that note, Christopher Shaffer @ 12:54:
“I don’t think this is making the Democrats happy because they typically like to justify the expansion of federal government power under the Commerce Clause or the Necessary and Proper Clause without admitting that part and parcel of their expansion of federal government power includes raising taxes on everyone.”
As a Democrat (although certainly not a legislator) I’d say that Democrats “like” to justify the expansion of federal government power as a method to correct injustices/ inequities; 75 years of Commerce Clause jurisprudence has just been the mantle under which that has taken place.
Before the ACA ruling, the supreme court’s approval rating was in the 40s. After the ruling, its up in the low 70s.
Are you sure that’s correct? Most of the numbers I have seen indicate a small slide into the mid-30s. Since the ruling did indeed give liberals something to dislike as well (those of us who would like to see the Medicaid expansion take place where the need is greatest, especially).
the Supremes found otherwise
Let’s be precise: the Supremes (Roberts, really) found that the mandate was an exercise of the taxing power of the constitution. That’s an important distinction.
conservative jurists are absolutely not allowed to utter one peep about a belief in the originalist or strict constructivism in interpreting the Constitution, lest they get filibustered to death by Democrats and the media while liberal, activist judges can freely expand on their loose interpretation of the Constitution
Well, that’s not particularly true as Alito, among others, talked about being a strict constructionist in his hearings, while Ginsburg parsed her answers about abortion fairly carefully (if quoting from Supreme Court cases can be considered “free expand[ing] on their loose interpretation” then those words mean different things to the two of us). But, in any case, you mean you’re shocked and appalled that Senators actually take their responsibility to question prospective Supreme Court justices seriously? That’s appalling! Next you know, they’ll actually be passing policies and laws and stuff. We can’t have that!
newly minted powers of Congress
I shall now go back to my old tax returns and put in the home mortgage deduction which I, as a renter, foolishly thought Congress had the power to make law.
I think the thing that frustrates most Republicans is, when it comes to the nomination process, conservative jurists are absolutely not allowed to utter one peep about a belief in the originalist or strict constructivism in interpreting the Constitution, lest they get filibustered to death by Democrats and the media while liberal, activist judges can freely expand on their loose interpretation of the Constitution without worrying about getting slandered as extremist in the media or by Congress.
None of the current Justices has had their nomination stopped by a filibuster. I can find zero evidence of any left-leaning Justice being called on loose interpretations of the Constitution, so if you’ve got some, by all means share it with us. There’s certainly evidence to the contrary: Scalia was known as a Constitutional originalist before nomination and was confirmed unanimously (98-0).
“Newly minted? I think not. There’s a lot of taxes and tax breaks related to things that some people do and others don’t.”
Tax break is not the same as a tax. There are incentives for doing certain things such as having children or owning a home, but there is not a tax for not doing those. You are taxed on income; you receive tax breaks in return for participating in things seen as beneficial to society. If you earned $0 and did NOT purchase healthcare (at that income level it cannot cost more than $750 per year) you would be taxed. I cannot think of another tax that acts in this manner. It may seem a subtle difference, but the implications are huge.
Ginsburg, at her nomination hearing, openly professed her support for a right to abortion with nary a peep of protest of objectivity.
She was questioned at length on abortion by at least 4 Senators, and yet still managed to be confirmed 96-3.
Tax break is not the same as a tax
You’re right, it’s not. In one case, you have to pay some tax for not doing something, and in the other case, you have to pay some tax for not doing something.
I’ll leave you to decide which is home ownership and which is healthcare.
Mortgage deduction is a tax break, not a tax. Please, do not confuse a tax break with a tax. Your income is taxed, you receive breaks for things seen as beneficial to society. You do not get taxed for NOT doing things beneficial to society, at least you didn’t tell last Thursday.
Mortgage deduction is a tax break, not a tax. Please, do not confuse a tax break with a tax. Your income is taxed, you receive breaks for things seen as beneficial to society. You do not get taxed for NOT doing things beneficial to society, at least you didn’t tell last Thursday
Baloney. You have to pay more tax for not owning a home. That’s getting “taxed for NOT doing things beneficial to society.”
On health care, you get taxed for not owning health insurance. That, too, is getting “taxed for NOT doing things beneficial to society.”
Oh, and by the way, if you want to complain about filibuster usage, you may want to investigate why it’s the Republicans who have jacked up the usage of it. There have been more lower-court judges blocked by Republican filibusters and judicial holds in the last 4 years than any previous sessions.
There are incentives for doing certain things such as having children or owning a home, but there is not a tax for not doing those.
Sorry Ozzie, you’re saying Potato, Potato here. David nails it with the Mortgage Tax Relief too. I have to pay more tax because I’m a renter (in the US, in the UK my mortgage lost the tax break in the early 90s thanks to that old lefty Margaret Thatcher).
If you don’t have health insurance you’ll have to pay more tax. If you do have health insurance/mortgage/kids you’ll pay less.
Nothing new here. Nothing at all.
Let’s not go too far afield on the issue of taxes, please. One, it’s not on topic. Two, it one of those discussions where nothing will ever be resolved. Three, see one.
As Dave Branson pointed out, the fact that Obama and the Democratic Congress tried to muddy the waters by claiming the individual mandate was not a tax when passing ACA, the Supremes found otherwise.
Yeah, who else would call it a tax (penalty)?
—Mitt Romney, USA Today, 7/30/2009
—Chief Romney Campaign Advisor Eric Fehrnstrom, MSNBC, 7/1/2012
@Christopher Shaffer: “conservative jurists are absolutely not allowed to utter one peep about a belief in the originalist or strict constructivism ”
Uh, would “originalism” be the belief that people in the 18th century, who thought that “bad airs” caused disease and that non-white and female humans should have no rights, should be directing the course of policy for us today? Or is it the belief that “conservative” (ha! that’s a laugh) judges can actually read the minds of people who have been dead for 200 years? Either way, do you suppose there’s any reason why non-“conservatives” might think “originalism” was, you know, stupid?
“In the end, if he would have voted against ACA, it would have been just another partisan decision.”
(Warlordgrego at 11:05 am)
I’ve seen many variations of this statement recently. I don’t get it. If he thought the law should be struck down, and voted accordingly, he would still be “his own man”, right? Are Ginsberg, Sotomayor, Kagan, Breyer partisan because they often vote in a bloc?
Don’t get me wrong, I disagree with the blowback that Roberts is getting from conservatives–but I also disagree with a lot of the blowback Roberts, Scalia, Thomas, and Alito get from liberals when they vote as a bloc. It just seems, well, partisan!
“is there really an argument that the Congress does not have enumerated in its Constitutional rights and duties the ability to levy taxes?”
Well no, except that it’s not a tax. Property, income, are all things that you are taxed for – but they are attached to something (property, income, tangible goods, etc.). What the Supreme Court said with their ruling is that you can now be taxed for not having something.
@Daveon and David, I apologize for struggling to articulate the difference. Per john’s request we will agree to disagree and leave as friends :)
@ David – perhaps I need to be more specific with regards to Alito and Ginsburg. While Ginsburg played coy on the abortion question, she was pretty forthcoming on her views in other areas. She was confirmed 96-3, even though by playing coy on some issues she gave the Republican Senators a reason to vote against her nomination, even though they knew they didn’t have the votes to stop her. They did not even try to filibuster her. By contrast, the Democrats did try to filibuster Alito, although they fell short. Surprisingly, Scalia is the only recent Republican SC nominee to get the same kind of support as Ginsburg on both sides of the political aisle.
They did not even try to filibuster her
You need to compare justices from the same time period:
Alito was confirmed 58-42; Kagan was confirmed 63-37. I see not a whit of difference in the treatment of the two. The Democrats talked about a filibuster of Alito; the Republicans talked about a filibuster of Kagan.
Still no difference.
(Ginsburg was confirmed 96-3, Scalia 98-0. I see not a whit of difference in the treatment of the two of them.)
Christopher Shaffer : conservative jurists are absolutely not allowed to utter one peep about a belief in the originalist or strict constructivism in interpreting the Constitution
If they were really “strict” “originalists”, then only white, male, land owners could vote, blacks would still be slaves, and women would be property.
The reason they get properly mocked is because they are quite willing to loosely interpret the Constitution about things they want to loosely interpret, and then they claim they’re “strict” “oritingalists” when the damn liberals try to push something they don’t like.
Surprisingly, Scalia is the only recent Republican SC nominee to get the same kind of support as Ginsburg on both sides of the political aisle.
You are aware that it goes the same if you reverse the names and parties, right? FWIW, the average votes for confirmation of the current Justices (78-21) is just one vote shy of the exact votes for Roberts.
@ Christopher Scaffer: Yes, I remember Bork. If it was his “strict constructionalism” that led him to support states imposing poll taxes and the reversing of other civil rights decisions, then it’s hardly surprising that he got some opposition over it. I also remember the cacophony of “peeping” about Ginsburg in the supposed liberal media.
Let’s have a more nuanced discussion of Bork beyond the simple fact of who he was nominated by. The content of his thought is important. I have far more problems with his philosophy that I do of Scalia’s at the time of their nominations (and I thought Scalia was properly confirmed).
Well, no. With the exception of the abolition of slavery – which was very much implicit in the Constitution from the beginning and only ignored by denying blacks as Men – all of those amendments were accomplished in accordance with the rules laid down in the Constitution itself, and so are unambiguously self-consistent with it, making them perfectly acceptable to an originalist interpretation. Strict constitutional originalists are opposed to things like the HHS and Obamacare on the grounds that they’re an overly broad interpretation of the Preamble’s call to promote the general Welfare. It’s fine to disagree with their interpretation, but imprudent to mis-characterize their stance, though I believe you did it because you genuinely thought they thought that.
I always new that the mandate was constitutional under the power to tax. After all, it was implemented by the tax code.
And yes, even judges promoted by liberals side with the right. I believe Kagan sided with the conservative judges on the medicaid portion of the ruling.
There have been other rulings, I remember one about searching a car when the person is already in cuffs in the backseat of the police car. I believe scalia sided with some of the liberals and other liberals went conservative. It was very strange.
Unfortunately, while the justices are free to go the way they wish, they often do not. It is often Scalia, Alito, Roberts and Thomas holding the line for the right and trying to convince Kennedy to come with. This is why we got such awful rulings like the Lily Ledbetter v Goodyear tire case, the Keith Bowles ruling, and of course Citizens United.
Tehanu: “Uh, would “originalism” be the belief that people in the 18th century, who thought that “bad airs” caused disease and that non-white and female humans should have no rights”
They viewed non-whites as human?
Liberal Dan – “They viewed non-whites as human?”
A couple thoughts on the Medicaid topic: From my reading, the Medicaid expansion was not struck down or ruled unconstitutional. Medicaid funds are paid to the states in ‘blocks’. There are many different programs available in the overall Medicaid program, states are free to implement whichever programs they choose. If they comply with Federal rules regarding how this programs are implemented, they will receive money from that block. The opposite is also true, if they choose not to implement a program, they will not receive that ‘block’ payment.
What the ACA tried to do was impose a program on the states, stating that if they didn’t implement the proposed expansion (new programs) that *all* Medicaid funding would be suspended, even if they were complying with all the rules of the other blocks.
The states are still free to implement expansion of Medicaid to individuals that are NOT: aged (over 65), blind, disabled, a child, or an adult caring for a child that is deprived of parental support (a child with a Deceased Parent, Absent Parent, Disabled Parent, or Unemployed/Under-employed Parent).
My bad. Yes, 3/5.
Gulliver: the abolition of slavery – which was very much implicit in the Constitution from the beginning and only ignored by denying blacks as Men
Speaking of strict originalist, that’s a pretty loose interpretation of history you’ve got going there.
Separate but Equal is also taken directly from the first sentence of the declaration of independence. Even IF you want to pretend that the constitution implicitly abolished slavery (which it sure as hell didn’t), a “strict” “originalist” could quote the declaration of independence and use it to defend segregation.
all of those amendments were accomplished in accordance with the rules laid down in the Constitution itself, and so are unambiguously self-consistent with it, making them perfectly acceptable to an originalist interpretation
In colonial america, people convicted of crimes were put on public display in the stockades, pillory, publically flogged/whipped, put on a ducking stool, or hung. They may have been branded. Children were often “bound out”, which was basically a form of indentured servitude for a number of years.
The 8th Ammendment says: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Any idiot who thinks he’s an “originalist” would interpret that in the original intent at the time and take it to mean that hanging, whipping, branding, stockades, and indentured servitude of children for years are all perfectly acceptable legal punishments and fall outside of what is “cruel and unusual”.
” Strict constitutional originalists are opposed to things like the HHS and Obamacare on the grounds that they’re an overly broad interpretation of the Preamble’s call to promote the general Welfare.”
Those are completely arbitrary grounds. That’s the point. It is entirely arbitrary.
When Thomas Jefferson was president, he made the Louisiana Purchase and bought almost a million square miles of land for 3 cents an acre. From wikipedia:
“At the time, the purchase faced domestic opposition because it was thought that it was unconstitutional. Although he agreed that the U.S. Constitution did not contain provisions for acquiring territory, Jefferson decided to go ahead with the purchase anyway”
A “strict” “originalist” would be in the group of short sighted idiots who opposed the Louisiana Purchase. It wasn’t in the constitution, therefore the president didn’t have the authority to make it happen.
Strict originalism is nothing more than the same sort of idiocy that quotes the bible to say God hates fags, while ignoring the part in the bible that shows God also hates liars, adulters, people who take his name in vain, people who work on sunday, people who eat certain animals, and so on. It’s completely arbitrary, so people can trot it out anytime someone is doing something they don’t like.
Considering that the 4 “left wing” judges also operate as an orthodox bloc on this and many other issues, shouldn’t this post at least mention the negatives of a left wing orthodoxy just as it does the right wing? I noticed in a comment that you said “the right wing values (and expects) orthodoxy more than the left wing does” but, forgive me, this assertion strikes me as quite lazy thinking. I agree with the sentiment that it is good that Roberts might be willing to “make up his own mind” on this issue, but it seems to me that your general criticism of the right applies to the whole court and is inequitably applied here.
Leaving aside the fact that the right wing of the US has shifted itself politically to such an extent that even Ronald Reagan (the real one, not the icon) couldn’t pass its current sniff test
You have actual proof of this or is this one more example of your irrational, “progressive” orthodox faith that intentionally ignores evidence and facts?
I can show where FDR, the progressive hero, wouldn’t even be welcome in today’s extremist Democrat party, the party of the violent OWS. Point of fact, FDR was against public employee unions. He was against the kind of out-of-control corporate cronyism that has reached unprecedented levels under Obama. He was for Keynesian “stimulus” but only if it were short-term, had definite goals and wasn’t (again) handed out to only cronys.
No, FDR might want to associate with the straight-jacketed extremists in the DNC (actually, probably not) but the DNC would deem him a “heathen” or an “infidel” to the progressive faith.
Reagan, if you look at his beliefs and record, would find allies in the TEA Party.
Conservatives always seem to take Libertarian-ish positions when Liberals are in power. Magically, they’re suddenly all keen on the expansive power of government when a Republican hand is on the tiller
To be fair, this is a bipartisan problem. Notice how all the Democrats aren’t screaming about war crimes and eroded civil liberties now it’s an Obama government doing it?
You know, as a Canadian law student, the US Supreme Court is fascinating (well, fascinating like a train wreck – can’t look away). Our courts are by-and-large apolitical. In fact, the Supreme Court goes out of its way to remain apolitical and to minimize split decisions entirely. The contrast is jarring.
Oh, and considering that more than 60% of Americans are against the IM and a majority of them are against the whole law (49% to 38%), and that’s not changing, it must be the majority who are “straight-jacketed extremists”. Wrong. It’s people like Obama and Scalzi who are so extreme in their political beliefs and so blind to the fact that very few agree with their economy-destroying, class warfare rhetoric and orthodoxy.
@scorpius Those poll results change when the the parts of the law are polled separately; and depending on the poll, those results include people who think it should be a single payer law.
Here I’ll give you Bloomberg’s poll which states that only 34% want it repealed.
Scorpius: Actually, when you poll people on the law you have to go into the meat of the results and see why they oppose the law. Most polls I see have a majority of Americans either supporting the law or opposing it because it is not liberal enough. That means a majority of Americans reject the conservative view on healthcare (as they should, since the GOP alternative they proposed was horrid)
Reagan raised taxes (a sin to lord Norquist) and gave amnesty to people here in violation of our border laws. Those two things would be enough to get him the RINO label. Then you have his comments that millionaires should not pay the same tax rate as a bus driver and as such the tax loopholes that allow such things should be eliminated (another vilolation of the Norquist code of being a “Good Conservative” TM)
If you praise Roberts for having his own mind in this instance, doesn’t that imply that perhaps some of his other decisions were also made on the basis of his own individual thinking rather than “orthodoxy”? You cynically imply that all the times he agrees with the other right wing guys he is a partisan hack, but the one time he doesn’t it must be because he decided to think for himself for a change. If you want to praise him now, you must concede that he gave the decisions you disagreed with the same consideration.
Scorpius: “violent OWS”
Look, if you’re gonna troll, try to at least make it entertaining. You channeling an idiot like Brietbart screaming himself into a heart attack with “stop raping yourselves” was old when Brietbart did it.
Reagan, if you look at his beliefs and record, would find allies in the TEA Party.
Well, Reagan was starting to go a bit insane there at the end, so I guess that makes sense.
Greg, your immaturity is showing again. It’s not nice to speak ill of the dead, especially someone who left young children behind.
I disagree with this entire post. Roberts made a tactical ruling that got the liberal justices on the court to sign off on an important point – that Congress can’t create commerce to regulate it. Unfortunately, he had to violate the constitution to do so, as the dissent points out.
JimF: my polls were of likely voters the one you cited was of all adults (which includes even released felons and illegals. “All adults”). Like it or not (and Holder doesn’t, of course) likely voters who are legal voters are all that matters when deciding policy. Felons, illegal aliens and people who vote multiple times don’t count.
Liberal Dan: The thing about the TEA Party, contrasted with the unreasonable OWS, is that they push for and want a “perfect” candidate (although with the TEA Party made up of hundreds of grassroots organizations with their own agenda it’s hard to decide on a “perfect” candidate) but will settle for less than perfect. Less than perfect leaders and candidates include Palin (who wants government “investment” in all forms of energy), Scott Brown, Mitt Romney, Marco Rubio etc. And they’re not so uncompromising on immigration as they’ve offered alternatives to the “Dream Act”. Try actually reading teh TEA Party’s positions before commenting on them.
Greg: The OWS started off good, which is why so many Dem politicians supported them. They’ve been taken over by violent, extremist, uncompromising zealots and anarchists.
Wow. You claimed “60% of Americans” were against the bill, and now it turns out that it’s only likely voters? There’s a powerful stench of something in that comment.
my polls were of likely voters the one you cited was of all adults (which includes even released felons and illegals. “All adults”). Like it or not (and Holder doesn’t, of course) likely voters who are legal voters are all that matters when deciding policy.
I rather thought that they were all created equal–likely voters, registered voters, all adults–endowed by their Creator with certain unalienable Rights.
I have interviewed tea party people directly. I am well aware of what they stand for.
Billy: , your immaturity is showing again. It’s not nice to speak ill of the dead
Oh, please. Your faux indignation about immaturity and lack of decorum is as laughable as Rush Limbaugh getting outraged at drug abusers, TEA party folks getting outraged at “violent” occupy wall street protests, or the pope getting mad Penn State for covering up Jerry Sandusky.
Give me a break.
Billy: They’ve been taken over by violent, extremist, uncompromising zealots and anarchists.
You mean they’re carrying M-16’s to protests now???
You so silly.
I view this decision as really 4.5 to 4. There’s mounting evidence that Roberts was extremely close to going the other way and probably changed his mind quite recently. I see Roberts, cynically perhaps, as doing this almost purely out of self-interest rather than common sense or anything else: he didn’t want the reputation of “his” Supreme Court tarnished even more badly. Though I’m very thankful the “good guys” actually won this one (for a change), I’m not going to hold my breath waiting for this to happen again. (though my original theories on why he did this still have some merit…..)
I do have to acknowledge that the violent, extremists, uncompromising zealot, anarchist leader of Occupy did recently walk into an airport with a gun and get himself arrested.
Oh, wait. That’s the tea party again….
Folks, I’m seeing a fair number of personal snark attacks in here, AND FROM THE USUAL SUSPECTS, so let’s reel it in before I have to go a-malletin’, please.
“The Founding Fathers, in their wisdom, gave federal judges life tenure. One reason for that was to insulate these judges from the current fashions and passions of the political fray and to give them their own heads about things. Judges are not immune to politics, of course, especially if they want to move up and dream of a Senate confirmation hearing sometime in their future. But it’s also equally true that once you’ve had the confirmation hearing and passed it, you’re gone as far as you’re going to go. John Roberts is the Chief Justice of the United States. It’s a terminal position, employment-wise — which means there’s no one who has any lever they can wedge in to get him to move the way they want to. He’s on his own recognizance. He has his own head.”
Well, that would be well and good, but the current thinking is that Roberts _was_ influenced to change his vote. The dissent is apparently a minimally changed version of the original majority opinion Roberts authored. Unfortunatly, he apperars to have been swayed by the arguement that the left would have pitched a collective fit about the illegitimacy of the Court stricking down the ACA. And so, he created a tax where Congress had expressly tried not to create one (because the ACA would never have passed if the mandate were construed as a tax) to tie the ACA to an undeniable power of Congress. Old and Busted: winning oral arguements. The New Hotness: lobbying justices after the fact.
For all the talk of the partisan right wing of the court, was there ever any doubt that Kagan, Ginsberg, Sotomayor and Bryer were going to find in favor of the expansionist reading of the Commerce Clause? Conservatives had their doubts about both Roberts and especially Kennedy, nd expected a solid 4-vote block to affirm, so the suggestion that this was “driven through” with alacrity in expectation of a win is news to me. My impression is that conservatives _hoped_ this would be overturned, but figured it would be a close thing at best. In the end, they did win the battle of the Commerce Clause but lost the more important war of ACA.
I take anything published by Gawker or “think” progress with a giant grain of salt. However, carrying guns is a Constitutional right and not “violent” and the Tea Party founder carrying a gun (which he presented in a lock box) simply made a mistake.
Violence is threatening to blow up a bridge. Which some OWS people tried to do.
Violence is going to an event, blocking traffic and pushing an elderly lady down a flight of stairs because you disagree with her politics.
Violence are the rapes, murders, destruction of property that are the hallmarks of the OWS camps.
Face it, OWS and the left have been taken over by self-righteous bully boys and street thugs who turn to violence as their first recourse.
I mean, every indiciation is that Roberts changed his vote due to the intimidation coming from the left. He didn’t want his court to be deemed “political” and didn’t want to have to walk around with a 24-hour a day security detail for the rest of his life.
The “right wing” offered no comparable threat.
“Well, that would be well and good, but the current thinking is that Roberts _was_ influenced to change his vote.”
And? No one else has any other hold on Roberts either, given the nature of his position; therefore he is free to make up his own mind. That his mind may have been made up by considering information outside the sphere that those who assumed they had him in their camp would prefer is indeed a feature, not a bug.
Scorpius, et al:
The Occupy Wall Street stuff is really wandering off topic; reel it in, please.
@scorpius my point was not so much about the poll you put up, but about the inexact nature of polls. Polls can and have been known to influence their results based on the wording of the questions, who they ask, and the order they ask the questions in. In a question about the ACA which most Americans still are not sure of the details, those factors can really swing the response.
I concurred with Roberts’s decision before he made it. The individual mandate was so clearly a permissible exercise of the taxing power that I was amazed that anyone would even think to contest it.
There seems to be some confusion around here about what a tax is. To clarify, a tax penalty is indistinguishable in fact from a tax credit assessed against a capitation tax. A capitation tax is one assessed against population: each citizen is obliged to pay a fixed amount, since they all have heads. Capitation taxes, of course, are no longer common, but they are still technically among the enumerated powers of Congress.
I should say I don’t like the individual mandate, and I don’t like the ACA in general. It has a few good points, but only compared to what we had before. In general, it’s terrible policy: a tremendous kludge funded by a hugely regressive tax that is still an incomplete solution, especially in the form that it has survived the Court.
“..insulate these judges from the current fashions and passions of the political fray…”
“…his mind may have been made up by considering information outside the sphere… ”
I’m not saying the logical Venn diagrams of these two statements don’t overlap at all, but I am saying that overlap would get you 2/3 of the way to a drawing of Mickey Mouse.
Of course Roberts is free to use all sources at his disposal. It just seems like he did that, wrote a mojority opinion striking down the ACA, and only _then_ was influenced by the politics of the decision. Again, as the custodian of the Court’s reputation, there may be some justification for that, but it belies the idea that he is above politics.
“Again, as the custodian of the Court’s reputation, there may be some justification for that, but it belies the idea that he is above politics.”
Or he had a change of heart, or thought of something that he previously hadn’t thought of. I don’t think we need a conspiracy theory every time a that happens.
“A foolish consistency is the hobgoblin of little minds…” Believe it.
I give John Roberts a significant amount of credit for deciding not to strike down the law–although, as Jeffrey Toobin pointed out in the New Yorker, it should have been a non-issue to begin with,
@ Christopher Shaffer: I was able to find, on google, that both Sotomayor and Kagan have sided with conservatives on important cases, though those cases were not as covered as IFSM vs. Sebelius did (not surprisingly). Kagan sided with conservatives on a Miranda Rights case, Howes vs. Fields: http://www.emptywheel.net/2012/02/21/elena-kagan-votes-with-alito-and-thomas-to-undermine-miranda/
And Sotomayor sided with conservatives on Sorrell vs. IMS Health, stating that drug companies *are* allowed to buy information on doctors’ individual preferences on what they prescribe (striking down a state ban in Vermont.) http://theacru.org/acru/sotomayor_sides_with_conservatives_in_corporate_free_speech_case/
Stephen Breyer has, I’m sure, sided with conservatives several times over the years, but I don’t feel like googling his record at the moment.
Scorpius: every indiciation is that Roberts changed his vote due to the intimidation coming from the left. he … didn’t want to have to walk around with a 24-hour a day security detail for the rest of his life.
And NASA faked the moon landing…
every indiciation is that Roberts changed his vote due to the intimidation coming from the left.
Wow, you right wingers are kinda weak-willed, right? I mean us left wingers have decade-long conspiracies that we’re sustaining, we’re driving all sorts of institutions (the media, academia) and you right-wingers get into a position of power and just immediately fold in the face of a NY Times editorial or two, or start weeping when Jon Stewart makes fun of you. Dude, you have to man up a little bit here. It’s an adult world.
(But if you want to cry on my shoulder a little bit, I won’t tell anyone, promise)
The DOI is not the law of the land. It is a declaration of revolt. I didn’t say the Constitution explicitly abolished slavery, but neither did it support it. The institution of slavery rested on the a priori assumption that blacks were not people. The freedom of people is very much implicit in the wording of the US Constitution.
It was not unusual then. It is unusual now. The framers originally intended the Constitution to apply to the future as well as the present. I’m not sure what, however, the Eighth has to do with your original point about abolition and suffrage.
No, it’s an interpretation of the law, that powers not explicitly enumerated to the federal government fall outside its legitimate ambit.
Constitutional originalism is a valid concern for the rule of law. That not a few politicos apply it selectively to advance their own agendas does not invalidate the concern any more than hypocrisy towards any other ideals automatically render the ideals themselves “arbitrary”.
Disclaimer: I am not a strict originalist. I believe that it is important to uphold the rule of law, but I also believe that society is best served by interpreting the ambiguous parts of the law using the representative democracy by which our republic is governed in a contemporary context.
I’m not sure which is funnier, that you think the Dems are the party of the OWS or that you think the Occupiers are violent.
It’s been a few years since I went to a rally, but even I hadn’t though the Tea Party had acquired Big Government proponents of the welfare state!
Greg said to scorpius:
I thought he was funny.
Now that’s an OWS protest I’d like to see :)
I recommend either a composite or plastic stock – they’re way lighter and easier to maintain.
Gulliver: “The DOI is not the law of the land.”
Look, you’re playing word games now. “strict” “originalist” means hewing exactly to the original intent that the founding fathers meant in the Constitution and no more. You don’t get to pretend that the Declaration of Independence doesn’t reflect the Founders intent. Just like you don’t get to ignore the fact that Thomas Jefferson admitted acquiring the Lousiana Purchase was not enumerated in the constitution but when he was president he said “screw it, I’m buying it anyway”.
All of those things reflect meaning, intent, of the original founders.
The complete and utter bullshit that “strict” “originalist” will play is pretending that they’re not simply playing Humpty Dumpty with words in the consitution, making them mean what they want them to mean, and fuck all with any other document the Founders left, and to hell with any other statements the Founders made, and ignore any actions the Founders took.
Simply put, not even the Founders were “strict” “originalist” and they were fucking there.
No, it’s an interpretation of the law, that powers not explicitly enumerated to the federal government fall outside its legitimate ambit.
OK. it’s an interpreation of law. ANd it’s a absolutely moronic interpretation, because it was proven wrong when Jefferson acquired the Louisiana Purchase. At the time, people objected on the grounds that it wasn’t a power explicitely enumerated to the federal government, and Jefferson ADMITTED it wasn’t enumerated in teh constitution, and he did it anyway.
To be a “strict” “originalist”, someone has to be so arrogantly dogmatic as to say they know what Jefferson meant when he wrote the Constitution and insist they know it better than Jefferson did when he was President.
So, sure its an interpretation, but its a dogmatic interpretation.
Gulliver: It was not unusual then. It is unusual now. The framers originally intended the Constitution to apply to the future as well as the present.
That’s exactly what I mean when I said it’s arbitrary. “strict” “originalist” would mean that you don’t get to change the meaning from what the Founders originally meant by cruel and unusual.
If you say the Constitution’s prohibition against “cruel and unusual” punishment must use whatever the current socially acceptable definition of “cruel and unusual” means, then you can’t simultaneously be a “strict” “originalist”.
Constitutional originalism is a valid concern for the rule of law.
Strict Originalism a politlcal smoke and mirror hack. It’s Humpty Dumpty with a fancy suit on trying to make himself look presentable. A strict originalist must say that since the founders allowed capital punishment and flogging and branding and did not consider them “cruel and unusual” punishment, therefore we must allow flogging and branding now.
If you say we must interpret what “cruel and unusual” means by today’s standards, then you’re not a strict originalist by definition.
Now that’s an OWS protest I’d like to see
You act like it hasn’t happened a bunch of times already.
THere’s about 20 pictures of tea party people with guns from different rallies at this link:
I’d prefer people didn’t define “violent” as “mass number of people who don’t think like I do.”
That some Constitutional originalists are strict or dogmatic or whatever you want to call them ≠ anyone interested primarily in the original intent of the framers (AKA Constitutional originalists) are therefore any or all of the various names you’ve called them. To deny that the intent of a law matters is to deny the very fabric of our constitutionally-limited representative democratic republic. Yes, dogmatism is moronic. Original intent interpretation of Constitutional law is a valid jurist stance. Not all Constitutional originalists are the dogmatic imbeciles you seem to regard them as simply for holding that stance.
Occupiers carrying M16s?
I disagree that this ruling was merely a blow to those practicing “right-wing ideology.” I think it’s a blow to those practicing “partisan ideology” in general. The ruling basically said one side won by “one upping” the opposition by being clever. The Chief Justice went out of his way to point out that moral and ethical grounds played no part in the ruling, merely the rule of the game, and it was not the “jurisdiction” of the Court to rule on that which is reserved by the Constitution to the “People,” or “The STATES.” THE STATES powers are not on trial here, but the “GOVERNMENT” versus the “PEOPLE’S” are.
“The Federal Government “is acknowledged by all to be one of enumerated powers.” Ibid. That is, rather than granting general authority to perform all the conceiv¬able functions of government, the Constitution lists, or enumerates, the Federal Government’s powers.” (
NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.), is a usable example of this sentiment. “The Federal Government has expanded dramatically over the past two centuries, but it still must show that a consti¬tutional grant of power authorizes each of its actions. See, e.g., United States v. Comstock, 560 U. S. ___ (2010).” (NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.), another.
My point? Politics can only carry a “Civilization” so far. At some point, citizens must accept the “OBLIGATIONS” necessitated by their being “Citizens.” This, I think is where most “PARTISANS” lose sight of the “GREATER GOOD.” If you have a “Point of View” in the WORLD and it isn’t working, CHANGE! I think that a Political Play on that Sentiment is what got the Zeitgeist to move in such a way as to get Obama elected. I think, ROBERTS as a “Person in tune with HIS AGE,” understood this. I think Roberts sought to do away with “Partisan Politics” as it relates to the COURT (an “Originalist/Constructivist position)” , and focused ONLY on the “GAME and IT’S RULES” to prove a point. The “POINT?” The GAME has rules for a REASON. Rules aren’t “BAD or GOOD.” The RULES simply are. LEARN about THE RULES…and YOU may just “LEARN SOMETHING.”
I also think Roberts threw down the “GAUNTLET” to his supposedly fellow “Conservative Justices.” He asked them to “LOOK” at what their positions “represented.” The “Liberal Justices” were not asked to do so. Do “YOU” as a CITIZEN think they would do so? AND… yes “THEY” signed on to Justice Roberts’s opinion… by Design. Not unlike the “Founding Father’s” Easter Egg that paid TRIBUTE to the “percolating” sentiment of ABOLITION occurring in EUROPE and in the COLONIES.
To “me,” the CHIEF JUSTICE fulfilled not only his “LEGAL POSITION,” but his ETHICAL/MORAL “EDUCATION of the MASSES” post as well.
Sorry about the capitalization. It isn’t “SCREAMING,” merely emphasis, and used because “Bolding” seems wrong at times to me.
The idea that Roberts changed his vote based on intimidation from “the Left” is paranoid, petulant fantasy. Full stop. It’s particularly delusional when you realize that Roberts has been joking about moving to an impenetrable fortress because of the backlash from conservatives. As for a 24-hour security detail, the last judicial recall requiring such detail was Judge Kramer, the California state judge who issued the In re Marriage Cases ruling, and as a result had death threats, 24-hour security detail and had to wear a bulletproof vest in public.
Gulliver @3:24 – which Constitutional amendment gave women the same legal rights as men? (Hint: this is a trick question.)
Off topic (sort of), but I have to say that this is the only blog where I intentionally read the comments. It’s also the only website where the comments on touchy subjects don’t make me want to crawl into a hole and weep for humanity. Even if I don’t agree with the comments, it’s nice to know that the mallet of loving correction means I won’t be twitching by the third one.
So, thank you, John!
The fundamental point of the US system of government is a series of checks and balances; between the three branches of the Federal government; between the Federal government and the States and the People; etc.
Some people, sometimes, remember this, and do things “by the book” to maintain those checks and balances, rather than cravenly for their own side’s political advantage. Roberts clearly from all the accounts doesn’t like the law, and believes it exceeded the Commerce clause, but believed that it met the Tax clause (at least minimally plausibly). He telegraphed thinking along those lines in oral arguments. Nobody likes that answer, but it is at least a checks-and-balances-consistent viewpoint.
I liked the law’s goals AND think it was borderline and trending unconstitutional on the Commerce clause AND think that it was borderline but trending constitutional on the Tax clause. Prior to the decision everyone I know was yelling at me for that. Apparently 8 out of 9 of the justices would yell at me over that, along with 99% of everyone else; Roberts would probably harangue me that the law’s approach is probably wrong, but we’d at least be able to have a drink in the corner in civil discourse. I think I’d be in good company.
Gulliver: To deny that the intent of a law matters
I didn’t say it doesn’t matter. It’s just not the only thing that does matter.
The intent of the Founders would have allowed hanging and public floggings. It would not have occurred to them as cruel and unusual. That was their intent, and it matters only so much as it was their intent. But it’s not the end-all-be-all of what matters. We can decide that “cruel and unusual” includes public hangings and public floggings. And we don’t need a constitutional ammendment to make it the law of the land and the intent of constitution as interpreted today.
And again, Jefferson wrote the constitution and never put in anything about acquiring territory. When he wanted to buy the Louisiana Purchase, people objected on strict originalist grounds. It wasn’t a power explicitly enumerated in the Constitution. Jefferson admitted it wasn’t in the Constitution, and bought the Lousiana Purchase anyway. Until you can jive your definition that strict originalist means “powers not explicitly enumerated to the federal government fall outside its legitimate ambit” with the fact that the man who wrote the Constitution went and did something as president that wasn’t explicitly enumerated in the Constitution, then you’re not addressing reality.
“Original intent interpretation of Constitutional law is a valid jurist stance. “
Only if we want to allow hangings and floggings, only if we hew to the original intent of “cruel and unusual”.
And only if we ignore Jefferson as president exercising a power not explicitely enumerated in the constitution, buying the Louisiana Purchase.
If you’re willing to do both of those things, then sure, have at it.
If not, then what you are saying and the position you are holding do not line up.
Not all Constitutional originalists are the dogmatic imbeciles you seem to regard them as simply for holding that stance.
They’re claiming the earth is flat when it is clearly round. They’re saying the government can’t do anything not explictely enumerated in the constitution when Jefferson himself violated the very principle they claim he intended in the constitution (clearly he didn’t). They’re saying we have to hold to the original intent of the wording in the constitution and no other intention or interpretation is allowed without an ammendment, which means they’re saying the state can have public hangings and public floggins and the stocks and probably branding because the original Founders didn’t consider that cruel and unusual.
You can call it “valid” if you want, but that doesn’t make it so.
The institution of slavery rested on the a priori assumption that blacks were not people. The freedom of people is very much implicit in the wording of the US Constitution.
Oh, back to Jefferson. He thought blacks were inferior to whites. His idea of a solution was to send all blacks back to Africa. He raped one of his black slaves (Sally Hemings) and had children by her. This is the man who wrote the constitution.
So, what was that you were saying was implicit in the Consittution about black people?
Cause it’s not there.
Billy wants to talk about how FDR wouldn’t be welcomed by todays Democrats? If you had someone today walking around and doing all the things Thomas Jefferson did, he’d be a flaming racist that no party would touch with a ten foot pole.
That’s the whole problem with “strict” “originalists”. The world changes. People change. Our ideas of equality are nothing like they were 250 years ago. Our ideas of what is cruel and unusual are nothing like they were 250 years ago. I mean, for cripes sake, 250 years ago, people thought leeching was a good idea and witches were real.
We have to allow the constitution to evolve with our current understanding of what the words it contains means or we’d be ammending the damn thing every year.
If you are interested in other historical precedents for SCOTUS resisting political and governmental pressure, the saga of Harry Bridges (http://en.wikipedia.org/wiki/Harry_Bridges) is illuminating.
The US government of the time (three decades, 30’s, 40’s 50’s!) tried to deport Bridges for being a Communist and SCOTUS trumped them every time.
Bridges, a naturalized American citizen, died in San Francisco in 1990. He was a much beloved San Francisco character when I was growing up in California, and was often quoted in Herb Caen’s daily column in the San Francisco Chronicle.
Incidentally the Court’s various decisions are even more interesting reading than the wiki article.
That’s a pretty good prescription for the actual intent of the thing – including some really big ones like separation of powers, the idea that the power of the government derives from the people, a democratic institution, etc – means nothing and can be reinterpreted freely. That way eventually leads to madness and despotism. Because eventually bad people get elected.
So does literalistic originalism, i.e. back to slavery, 3/5, and the like.
I don’t know of any (non-individual-kook) assertions that literalistic originalism is the right course. All the people I know interpret it as “The constitution sets up categories of things; if it’s in this category it’s ok, if not then it’s not”.
“I don’t like this law, but I think it’s constitutional” comes through in a lot of opinions (particularly concurring or dissenting ones). Thomas’ rather stinging dissent in the Texas Sodomy case from a while ago is a good read, for one, in which he basically goes as far as he can without explicitly calling the Texas Legislature buttheads, but then says “Despite all this, this foolish law is within their constitutional power to make, so I have to find it constitutional.”
@Greg Witches are real. I dated one. Nothing was cold about her…
I really do lack patience with most people’s politics. Conservatives annoy me far more than liberals, but the ex and I had an ultra-liberal roommate who made me rethink my position on welfare several times. (Most people I’ve known on assistance want off and want to work. This one kept making excuses. So we dumped off in rural West Virginia like an unwanted pet. I digress.) All the same, I find liberals can be just as annoying and rigid. It sucks being a left-leaning libertarian. Nobody represents you.
Too often, people’s politics resemble religion. And most of that religion sounds either like your born again neighbor who would drive Jesus to become an atheist or the barroom atheist who wants to remind you that he’s smarter than you because he’s an atheist. (And ironically, he’s also the guy who burned himself lighting farts. So much for natural selection.) But when politics are rigid and depend largely on demonizing the other side, I find myself grinding my teeth, going “Must… control… fist… of DEATH!!!”
“Activist judge” is kind of like “biased media”. All it translates into is “I didn’t get my way.”
Well, tough. You don’t always get your way. In fact, you may never get your way. There are 300 million people in this country, and speaking on behalf of the other 299,999,998 of them, the rest of us probably don’t feel entitled to your opinion. You are free to speak it. You are free to criticize mine. You are not free to impose it.
Most importantly, you are not free from being offended. If you accept freedom of speech, etc., you give up freedom from being offended. For those of you who can’t handle that, it’s time to grow up.
And you sure as hell aren’t entitled to a puppet SCOTUS. Remember that next time something goes your way and the other side whines.
Gulliver: excellent response and it almost perfectly encapsulates my thinking about strict constructionism of the Constitution.
@ Greg: Most Constitutional originalists focus on the the intent of the law as written, with some leeway to mesh the interpretation of the intent with the facts of the case before the court. I would say most originalists don’t object to the interpretation of the Constitution to better address new technologies or practices that the Framers never had to deal with (ie Miranda warnings, warrantless wiretapping, political speech, etc), but what we object to is stretching the interpretation of the Commerce Clause, the Necessary and Proper Clause and other parts of the Constitution to justify the expansion of federal power and control into areas where the Constitution said the states have jurisdiction or more say. My belief is the Framers were cognizant of the need for some mechanisms to address democratic demands for change. One of those mechanisms is amending the Constitution through the proper methods. What the Left doesn’t like to admit is; their ideas for changing society, with some exceptions, wouldn’t stand a fart’s chance in a wind storm of getting passed via amendment. Hence, the desire to interpret the Commerce Clause, etc to suit their needs.
Petulant fantasy brought to you by those bitter right-wingers at Salon via Huffington Post:
As an aside, my feeling is Obama and Pelosi put together this wretched mess of a bill to do 2 things: Burnish their progressive credentials and historical legacies and most importantly, get something as close to single payer health care as possible started so when this scheme collapses under the weight of cost and inefficiency, they can try to get a true single payer health care scheme passed, which is liberals’ wet dream.
ZBBMMcFate: Sorry, where in your linked article does it say that Roberts changed his opinion because of intimidation from “the Left”?
Christopher Shaffer: Did you really just argue that the Framers never had to think about ‘political speech’, or that the point of Miranda warnings (making sure a person in custody is aware of their Constitutional rights) was a newfangled thing that couldn’t have occurred to the authors of the Bill of Rights?
I’m sure what you posted is what most self-described originalists believe is their viewpoint. But look at all the gaping loopholes in your argument; original intent except for new technologies, with some leeway, and so on. Would you argue, as some anti-gun activists do with sarcasm, that only muskets and flintlocks are covered by the Second Amendment because the Framers didn’t know about semi-automatic rifles? Or that DOMA is flat-out unconstitutional, because the ‘public policy’ exception is a judicial creation (which it is) and therefore it fails under the Full Faith and Credit Clause?
Sadly, originalism, like judicial activism and states’ rights, are principles for very few; for most they’re simply code words for a set of political values.
I’m not saying intimidation in the sense of threats, more that he was concerned about efforts to delegitimize the court that would greatly increase if he stuck with his original decision. Looking back on your comment, I realize that you were not disputing that Roberts changed his vote, more that it was intimidation that caused him to do this. It’s possible that a poorly argued part of the case that neither side appeared to find very convincing gradually convinced him of its wisdom, but I find that argument somewhat unconvincing.
ZBBMMcFate: Indeed, I was not disputing that he changed his vote – that’s pretty indisputable, I think, though there is a lot of quibbling over the reasons for it – but “intimidation” is not a reality-based viewpoint.
Less convincing than the idea that Roberts scrambled about in the final days to cobble together a specious reason for uphold a law he really thought didn’t pass Constitutional muster, lest there be some strongly worded op-ed pieces and stump speeches written about him?
What fascinates me about arguments about “the Founders intent” is that all of the so-called Founders had competing interests. The various amendments were not universally agreed upon tenets from on high; they were bribes, to win the support of various powerful lobbies. Many of the Founders loathed each other, believed their fellow authors were idiots and madmen, etc. It was a loose confederation of desperate men: those who still had some social and economic influence after years of war, four more years of chaos and disunion, on a continent in the midst of post-war depression and on the verge of a civil war. Freedom of speech, the press, states rights–all of them were written in to get the 9 ratifying states to agree to some sort of central authority. Depending on the power base of the state, they argued for various concessions: slave owners wanted states right to own other people, arms manufacturers wanted everyone to bear arms, the newspaper industry wanted freedom of the press to print whatever scurrilous nonsense sold papers. Even separation of powers was hotly debated–a monarchy was one of the options on the table.
It seems to me that the original intent of the Founders to get some sort of government in place before the whole continent went down the crapper, with a built in, permanent “we’re gonna make the rest up as we go along,” clause. It’s inspiring, because it’s a mass hallucination, like money or ownership–sound authoritative enough, get enough people to go along, and suddenly a concept becomes concrete. We cross invisible borders, and agree to pay sales tax, or reduce the speed limit. Why? We exchange pieces of paper or flash a piece of plastic that rotates pixels in exchange for goods or services. None of it has inherent meaning, we’ve simply agreed to pretend that it does.
So why pretend that there is some sort of divine, eternal, immutable intent in the Constitution? It’s an IOU that we pay off day-to-day, a rather vague contract with just enough terms and conditions to (usually, but not always) keeps us from breaking each others kneecaps. We duke it out every day, in the trenches with every election cycle, and if anything can be said to be the “intent” of our Founders, it has to be that, right there. We, as a nation, should fight about where the borders really are, argue and debate. We are fractious, defensive, and paranoid, and “just because you say that color is green doesn’t mean that I agree, so there” is our modus operandi. Any sort of strict constructionalism can only be meant as a debate killer, a civil “word of god.” But it’s not the words of any god, or the pronouncement of an angel, or a vision of a holy prophet. It’s the words of men, and we’ve agreed to go along, for the most part, more or less, with greater or lesser grace depending on the direction of the wind, even when we think everyone else are idiots and lunatics.
And this was not what I meant to do with my evening. Ah, well. Thanks for letting me get verbose, Scalzi, if this survives the mallet.
Yeah, when someone trots out one of the Founders (always one who agrees with their politics) to buttress his argument, I wonder if they’d be willing to compromise & consider a black man 3/5 of a white man.
The Constitution itself was a compromise and probably none of them (including the trotter’s favorite) agreed with the entire thing, so cherry-picking like that is a bit dishonest.
Christopher: What the Left doesn’t like to admit is; their ideas for changing society, with some exceptions, wouldn’t stand a fart’s chance in a wind storm of getting passed via amendment.
Well, you obviously lean Right or you’d realize that statement is equally true for just about any change the Right would like to make as easily as its true about the Left.
Maybe you haven’t noticed, but this country seems to be electing presidents with only a few percentage points of margin, and the house and senate keep swinging left and right almost every election. (with an overall swing to the right, but that’s what eternal war will get you)
There’s been a lot of talk about a constitutional ammendment to fix Citizen’s United, which seems to be about the most goddamn brain-dead simple must-fix-this-before-we-lose-the-nation problem we’re facing right now, but I swear to God, Fox News will get its shit in a knot the moment people start getting serious about fixing it, and Murdoch and the Koch brothers and every fucking millionaire+ out there is going to sink enough money into fighting it that it would probably be enough bank to build a moonbase.
I mean, God forbid we actually turn this country back into some semblance of a democracy where the number of people supporting a candidate is what matters, not the number of dollars. Christ almighty we’re about one cyborg away from being in New Detroit City run by Omni Consumer Products.
I’m well aware that suffrage is not equality, mythago. Greg’s original point to which I replied was that originalists, by definition, denied the amendments that expanded the franchise (19th for women) or the state laws empowering women to own property, which is flat out wrong. Specifically he said: ”…and women would be property.”
Quite, which does not diminish the principles themselves, as Greg seems (and perhaps I misinterpreting what he’s saying) to believe.
I never argued that the Constitution extended equal protection to women under Federal law, and I’m keenly aware of the historical failures to do so. As I said, I am not an originalist and, moreover, I believe any originalist worth their salt must temper their views with the wisdom or they’ll fall right into the trap Greg apparently believes they all already have, that of upholding the letter of the law to defeat the spirit of the law.
You seem to assume that I regard Jefferson as a dogmatic originalist. I don’t why you think I think that.
On the contrary. Why do you think the then-progressive framers believed society was static? The Constitution and their own copious writings amply demonstrate that they sought to found a government on principles that could be applied in the future as well as their present. If they really expected us to only ever ban punishment that was unusual and considered cruel in their time, why didn’t they choose their words more carefully and just say so? Why craft a founding document so carefully and leave out something so obvious in the painstakingly debated Bill of Rights?
You just made my point for me.
Please re-read the portion of my statement you quoted:
“The institution of slavery rested on the a priori assumption that blacks were not people. The freedom of people is very much implicit in the wording of the US Constitution.”
The Constitution is designed to protect the people. If I say gingers aren’t people, I could claim the Constitution doesn’t protect them. It would be total and utter bullshit, but I could claim it. This was done to blacks for the first 78 years of the United States existence. It’s called dehumanization, and it really is that simple.
And its original framers, for all their myriad faults, understood and intended this. Full stop.
Yup. The Union did not spring forth fully formed and unified.
Are you really arguing that information isn’t real? A tree isn’t inherently a table, but I can still fashion into the a pattern that makes it a table. That not all artifacts are concrete material objects does not make them unreal.
Why pretend that people here are pretending that? Saying there is an intent behind this law worth consideration is not dogma. If I walk up to someone on the street and punch them, I’m not going to get off by the judge that my interpretation of assault and battery is different from hers, nor should I.
I’m glad you did anyway. I agree with most of what you said.
@ Et alia (especially Kevin Williams, just in case his remark was directed at me)
Just to reiterate, my belief that there is value in considering the intent of a law (which, until now, I did not realize was so controversial a value to hold) does not translate into dogma. Nor does my unwillingness to simply scoff at constitutional originalism make me a strict constructionist. To provide just one example, I support a basic welfare safety net that was clearly not an enumerated Federal power, because I believe in the value of a more expansive interpretation than a constructionist (strict or otherwise) would. But, precisely because I value the sort of constructive debate that can lead to compromise, I don’t dismiss all constructionists are wing-nuts.
You’re exaggerating on both sides to male my position seem ridiculous. When the POTUS is leading the charge by calling an overturn vote “unprecedented” (even though he was forced to walk that back a bit) I think we’ve moved beyond a “few strongly worded op-eds”. I think it was a reasonable, if misplaced, concern on the part of Roberts.
Also, this was not cobbled together in days, but over weeks. Roberts was in the “nay” camp long enough to write what ultimately became the dissent, in the yea camp long enough to author the majority opinion. As to what changed his mind, I suspect there was no single factor. We can just disagree as to how much weight he placed on the merits of the mandate/penalty/tax chimera and how much on his concern over the court’s standing.
Doc RocketScience and mythago – sorry, conflated your two posts. Probably a sign to get some sleep.
Honestly, I wouldn’t be surprised if Roberts wrote both opinions mostly to understand his own thoughts, and then decided based on what he discovered within during the process. I say that, of course, because that’s how I function, and anecdotal evidence from writers and lawyers (not mutually exclusive), both published and of my acquaintance, seems to indicate that this sort of process is not uncommon. The sample pool reflects my own biases, of course, which is the problem with anecdotal evidence, and means that I’m probably projecting onto Roberts. Still, it’s an interesting thought.
ZBBMcFate: What I’m not seeing is any compelling reason why Roberts should care. Branches of government bad mouthing each other publicly has been going on since we’ve had branches of government. POTUSs (and Congresses) come and go; Roberts has his job for as long as he wants it.
C’mon now, Gulliver, this ain’t your first rodeo. No need to get a case of the vapors. Of course it’s controversial. Why else would there be a distinction between “the letter of the law” and “the spirit of the law”?
Greg: We have to allow the constitution to evolve with our current understanding
Gulliver: And its original framers, for all their myriad faults, understood and intended this. Full stop.
That means the framers were not… wait for it… strict originalists.
So, we are in complete agreement here.
@ Doc RocketScience
As far as I can discern, there seems to be two separate arguments going over this.
Some think that Roberts changed his vote because of physical intimidation. This is called fantasy. And even if it weren’t (which is is), Roberts does not strike me as a physical coward.
Others think Roberts changed his vote out of concern that liberals would delegitimize the High Court. By delegitimize I assume they mean remove or reduce its power of judicial review. Given the unpopularity of the law in question, the fact that doing so would require a constitutional amendment, and the Democrat’s track record for getting laws passed that are already constitutional, I can only assume they think Roberts is paranoid enough to think the law will magically gain overwhelming popularity and the Dems a backbone.
Both of which are part and parcel to the intent behind the law. Seriously, how controversial is it to suggest that the intent behind a law is not salient to its interpretation and application.
Yes, we appear to be in violent agreement on that particular point.
That should’ve read Seriously, how controversial is it to suggest that the intent behind a law is salient to its interpretation and application?
Clearly it’s bed time for yours truly. See y’all on Thor’s day and feliz Cuarto de Julio!
Greg, you keep referring to Thomas Jefferson as the author of the constitution, and it just isn’t so. He wasn’t even present at the convention.
The right has already gotten over their petulance with Roberts, I think. They’re already using the big club that Roberts gave them to beat up on Obama. By calling the levy a tax, Roberts enables the GOP and its adherents to wage the classic “tax and spend” accusations against the administration. It’s still an open question whether the taxes and penalties enacted in ACA are actually balanced/countered for individuals by savings in healthcare and insurance costs, but the superPACs are already campaigning as if every dollar paid to the government under ACA is a total loss to the consumer. “one of the biggest tax increases in history…”
Being a bit of a pragmatic I am waiting for the hammer to fall. I suspect that Roberts found himself on a razor edge. If he handed the Right their decision his court would go down as the worst activist court in history, their would be calls for his and every other head on the SCOTUS bench and it might just work. Yes, they have their robes for life, however they can be removed for dereliction.
On the other hand, he could find a way through the mess. He could find a way that would after examination allow him to keep his strictly conservative ties, uphold the law and hand his friends on the right a great gift close to an election. They only had to get over their initial pissiness.
He picked option 2. He repaired slightly the reputation of the Roberts court. He upheld Affordable Care and he handed the Right a gift, it is likely if there are any smart ones left over there they will figure it out.
Valentine Logar is exactly right, I don’t think there can even be any question. Now that ACA is a tax issue it does not need 60 to overturn but 51. Roberts was being as activist as you possibly can; he’s helping overturn the law legislatively. If the Senate goes Republican, the law is immediately toast. And even if it doesn’t, it will be the Dems who have to worry about the single rogue.
As a bonus, Romney now gets to hammer Obama for lying about whether the law is a tax, and for raising taxes in general, over the next 4 months. Perhaps this ruling will swing the presidential election in favor of the right.
Yet so deftly executed was this thing that Roberts comes out smelling like a rose, strengthening the court against its most stringent criticism, and even his opponents laud his supposedly impartial decision. Freaking genius move, you have to recognize that, scary smart, evil smart, I’ve been saying, many people just haven’t picked up on its nuance yet
Repealing the ACA via reconciliation is likely not as easy as one might suppose. But certainly the division between keeping the ACA and potentially legislating it out of existence will be one of the important differentiators of the two majors parties this election.
That wasn’t aimed at you, it was a general observation about people who like to cite e.g. the Federalist Papers or other works by just one or a few favorite Founders.
@Gulliver: Greg’s obviously incorrect that women were ever officially “property” under US law, and I appreciate clarifying what you said. I do believe that it “diminishes the principles” of originalism and strict constructionism when, like “family values” or “states’ rights”, they are not so much describing a judicial philosophy as code for a particular view on how Constitutional disagreements should turn out. Hence Christopher Shaffer’s footnoting and qualifying those principles.
Legislative intent is, as you correctly note, important, but it’s important in interpreting the meaning of the law and not for handwaving off unintended consequences. I doubt the Framers intended to protect Santeria or Satanism with the Establishment Clause, but we don’t therefore say it doesn’t apply to those religions, any more than we dismiss the term ‘sex’ in the later CRA because it was inserted in an attempt to defeat the bill.
… certainly the division between keeping the ACA and potentially legislating it out of existence will be one of the important differentiators of the two majors parties this election.
Which, in my opinion, is how it should be.
To paraphrase the Chief Justice, it is not the Court’s job to protect people from their electoral choices.
Wait, People actually thing the 3/5th’s Compromise came about because the Convention thought Slaves were only 3/5th’s human? Wow…that’s sad…
I prefer Oliver Wendell Holmes: “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.”
Roberts was being as activist as you possibly can
You don’t understand what “judicial activism” means if you actually think that.
One thing you must understand when arguing points of originality: the Founding Fathers as a monolithic group with one voice never existed. The only things they ever agreed on was that British rule sucked, and the Articles of Confederation sucked even more. Beyond that, it was pretty much an early version of The McLaughlin Group. (“Issue Number 1: Should we have a Supreme Court or lots of little state courts, ELEANOR CLIFT!” “We really ought to…” “WRONG! THOMAS JEFFERSON!” “We hold these truths to be self-” “WRONG! If they were self-evident, you wouldn’t have had to write them down! Issue Number 2: The national candy: Skittles? Or M&M’s? ALEXANDER HAMILTON!”)
I don’t know why I missed this, probably distracted with work/school/life in general. Reagan agreed to amnesty as part of an immigration deal with the Democratic Congress of the time. He wanted stricter immigration control and bargained with them to get it.
The same with raising taxes. The Congress is in charge of the “purse” and passed higher taxes. Reagan again made a deal for them to cut spending in exchange for higher taxes.
In both instances the Democrats were dealing in bad faith (surprise, surprise, surprise!) and stabbed him and the American people in the back.
Sorry but Reagan would be a TEA Partier and FDR would be voting for Romney and hate the corrupt and cronyist Obama
“The same with raising taxes. The Congress is in charge of the “purse” and passed higher taxes. Reagan again made a deal for them to cut spending in exchange for higher taxes.”
The TEFRA Bill of ’82, source of one of the best Reagan quotes ever IIRC…
Someone who followed the arguments more closely might be able to confirm or deny – but wasn’t that basically the grounds the case was argued on? I may be totally off beam here, but doesn’t the Supreme Court have to work with what they’ve got and I suspect the kind of lawyers who argue before SCOTUS don’t get to do so because they’re prone to pulling stuff out their arse the night before.
IIRC, the government made a very weak case that the Act could be considered a tax. The Solicitor General spent much of the time arguing that if it wasn’t a valid Commerce Clause issue, then it was valid under Necessary and Proper, and then spent perhaps a few minutes on if it was neither of those, it could be considered a tax. They didn’t spend a lot of time on it in the “It’s a tax” arguments.
@Todd, it wasn’t that the argument was “weak”, but it was not their primary argument; it was more of a backup argument. Sometimes judges will surprise you.
@ Calven Scott Eldred
While it’s true Jefferson wasn’t directly involved in authoring the text of the US Constitution, he and his longtime frenemy John Adams were indirectly involved in framing the key ideas through copious correspondence with convention delegates and his earlier writings, including the Declaration of Independence and other goodies cribbed from their mutual associate Thomas Paine. This isn’t speculation; many of those letters are preserved in the Library of Congress and other museums. That said, Gouverneur Morris was the Constitution’s main editor.
@ Kevin Williams
I wasn’t sure, but I wanted to be clear about what I was saying and why. Thanks for the clarification. The founders were a fractious lot, to be sure. I am still amazed, though, at how well the Federalist Papers and Anti-Federalist Papers capture much of the gestalt of the debate among the rebels.
To an extent, I agree with him that women were de facto property before the states extended to them property rights (albeit not easily or all at once). I would argue that the inability to own property in a propertarian society at least renders one unofficial property. But I disagree with him that constitutional originalists/constructionists intrinsically reject either the states’ laws that extended those rights or the post-ratification constitutional amendments which were, after all, amended under the rules of the constitution itself.
I would say that I’m suspicious of “strict” anything. But people are individuals and I prefer to deal with them on that basis rather than prejudging them based on the profligate abuses of the their philosophies by hypocrites. My recent clueless insensitivity toward religion is a good example of why I try to avoid pigeonholing folks.
I agree. I don’t think they sat around trying to think of specific novel applications of the governmental framework they established. But I do think that they realized, precisely because they were a prime example of the outcome, that an inflexible form of government was especially unstable and, to that end, I think expected their living document to be a tool and not a vice.
Please. Regan oversaw unprecedented government expansion. It’s amazing how caved-in becomes compromised once a politician leaves office.
Please. Regan oversaw unprecedented government expansion. It’s amazing how caved-in becomes compromised once a politician leaves office.
Please, the precedent was set by FDR. While Reagan is no “icon” to me, he was a very good president. And while we can quibble over “caved-in” or “compromised” the fact of the matter is he did have to deal with a Left wing Congress who kept sending him huge spending bills from one flank while dealing with a press that hated him (and loved the Congress) from the other flank.
So if you want to call it “caving” fine.
I’m not calling it either. I just find is curious that whether it’s Bush, Clinton or Regan, the choir tends to sing a different tune when the selective memory of history sets in.
Please, the precedent was set by FDR
And? That was the platform Roosevelt ran on, and he executed it. Reagan ran on a platform of shrinking government and did exactly the opposite.
Actually in 1982 Reagan came to an agreement with the Democrats. TEFRA was designed to bring about $3 in spending cuts for every $1 in new revenue. On paper, it advanced Reagan’s goal of shrinking the federal government, but in practice, the results of TEFRA were almost the opposite. Congress never delivered on the spending cuts, bills that were supposed to have been passed after TEFRA were not, or if they were were so heavily changed their impact was minimized, but the tax increases remained in place. The 1982 budget deal actually resulted in $1.14 of new spending for each extra tax dollar.
Reagan, and other conservatives, called the 1982 agreement the worst domestic error he ever made, and the tenor of the negotiations and the outcome between the White House and the Congress were very much changed, and not for the better.
@Gulliver: selective memory is a great way to be sure one (and one’s allies) are always the hero of the story. Reality and facts are not important; they’re just tools in proving the Ultimate Truth that one is correct. If a fact turns out to be false, move on to another one (and be sure to recycle that fact around others who haven’t heard it yet); if an argument is weak, shift to another one (ditto). Sad, but very very human.
WRT originalism, perhaps I’m not explaining well. I don’t mean that anyone claiming to be an originalist ought to be assumed to be a lying hypocrite. I mean that “strict constructionist” and “originalist”, like “states’ rights” or “family values”, are not really descriptors of a particular and consistent judicial philosophy so much as announcements of a particular package of beliefs.
scorpius: the Democrats … stabbed him and the American people in the back.
Really? A stabbed-in-the-back myth? Well, I guess we know who’s propaganda playbook you’re using.
mythago: Greg’s obviously incorrect that women were ever officially “property” under US law,
Not explictly in law, but a “strict” “originalist” would say we should treat women now exactly the way the individual Founders treated women back in 1776, and if we want to change that, we have to pass an ammendment. Just like saying we should interpret “cruel and unusual” exactly the way the Founders thought certain punishments were cruel and unusual and others were not, and so if you want to stop public flogging you have to pass an ammendment.
That’s my whole point of why a “strict” “originalist” is like someone who cherry picks the bible. If you dig enough, and cross your eyes as needed to mind read the “original” intention, you can find anything you want in the bible.
There’s a line between “spirit of the law” and argumentum ad antiquitatem. A “strict” “originalist” is in fallacy territory.
Scorpius: Reagan was a huge deficit spender as well in order to accomplish things like going after SDI. The tea party would have embraced that?
You also left out the part where Reagan wanted millionaires to be taxed at higher rates than bus drivers. The tea party would have embraced that?
Higher taxes on the rich and deficit spending would have automatically gotten Reagan kicked out of the tea party. That he compromised with the Democrats on immigration makes it even worse. No tea party member wants their members to compromise with Democrats. To them, compromise = surrender.
No way the real Reagan would be included in the ranks of the Tea Party.
I think the keenest insight I have seen offered on this matter is one from a commenter at The Volokh Conspiracy (a forum for libertarian law-nerds) who said, essentially, that Bush the Second had exactly one criterion for SCOTUS candidates: they needed to be absolutely reliable on the War on Terror. Everything else, other than the appropriate mouth noises on abortion, was entirely insignificant. This is only the first of many very large chickens which are coming home to roost after being set a-wing (or a-foot, I guess, giant chickens probably don’t fly well) by this situation. Since rolling over on the War on Terror means being inherently biased toward expansion of the powers of the State, things like this are an entirely predictable consequence.
“Also, this was not cobbled together in days, but over weeks. Roberts was in the “nay” camp long enough to write what ultimately became the dissent, in the yea camp long enough to author the majority opinion” — Just a point of clarification here: Roberts, as the Chief Justice, is the person who assigns the writing of opinions. It didn’t matter which “camp” he was “in”; as the CJ, he got to decide who was writing which opinion. There are several articles that suggest Ginsburg wrote the (previously a minority dissent) majority opinion that was then incorporated into Roberts’ official majority opinion, based on the criticism of the (previously a majority) minority opinion. Once Roberts decided he was for the ACA, the majority opinion became the Ginsburg rather than the Scalia option.
“Scorpius: Reagan was a huge deficit spender as well in order to accomplish things like going after SDI. The tea party would have embraced that?”
For defense spending? Probably.
“You also left out the part where Reagan wanted millionaires to be taxed at higher rates than bus drivers. The tea party would have embraced that?”
If the Bus Driver were taxed as well, most likely. Currently in the US the number is what, 50% of the population does not pay taxes? Maybe a little higher or lower. For a variety of reasons. And I’m reasonably sure that Warren Buffet, Bill Gates, George Soros, they do everything they can to pay the least they can; and if they wanted to pay in more, they could send a check in. Honestly, who in America says “I’m not paying enough in taxes, let me send the government more than they are asking for”?
Buffet announces he’s paying a lower rate he’s also not mentioning how he’s paying that lower rate…it just makes a good blurb that most people don’t investigate…and meanwhile they ignore the fact his company has been fighting the government on the taxes its pays tooth and nail the last 15 or so years…
“Higher taxes on the rich and deficit spending would have automatically gotten Reagan kicked out of the tea party. That he compromised with the Democrats on immigration makes it even worse. No tea party member wants their members to compromise with Democrats.”
His immigration stance would get him into trouble, but Reagan made no apologies for his beliefs on that issue. If the Immigration Act of 86 had been enforced and funded as written (and even the bills authors admit successive administrations have failed in that regard), I’d think his support would have been about the same. That said, had the Tea Party been around after the passage of the 86 Act, I’m pretty sure it would have done everything it could to make sure it was enforced.
But IMO the political arena back then was a lot more acrimonious, politicians today are more careful about what they say and how/when they say/tweet/post it.
Todd: if they wanted to pay in more, they could send a check in.
Why stop there? Just have the government be a charity and people can contribute whatever they want. I’m sure that would be the most fair.
@Todd: I believe the statistic you meant to quote is that slightly half of Americans pay no FEDERAL INCOME TAX. Generally that’s because they make so little in earned income that their liability
Government is already a charity for many people in the US, isn’t it?
I think your post was cut off, but yes, I meant Federal Income Tax.
And while I know a percentage of that is because they do not earn enough to qualify, there’s also a percentage out there that uses the tax laws and loopholes within to their advantage. Anything that’s 20 volumes and 16000 plus pages long is going to be abused.
Corporate Tax is just as big a mess too though.
We don’t like calling it charity, Todd. The more accurate term is “corporate welfare”. And yes, there’s way too much corporate welfare out there.
@Todd, my phone cut off “is wiped out” so not catastrophic.
There is a HUGE difference, rhetorically, between “no tax” and “no Federal income tax”. The former makes it sound as though half the country has a complete free ride, rather than simply being too poor to owe the IRS. I assume you were being hurried, but I have seen that omission used quite deliberately.
What is the percentage that you think use “tax laws and loopholes” to push their income below the line of owing the Feds? What loopholes are they using? I’m pretty sure those are mostly the province of the upper end of the spectrum.
“We don’t like calling it charity, Todd. The more accurate term is “corporate welfare”. And yes, there’s way too much corporate welfare out there.”
There’s way to much welfare out there period IMO. Plenty of people and Corporations are receiving benefits that shouldn’t apply to them, but so because of loopholes they do.
“What is the percentage that you think use “tax laws and loopholes” to push their income below the line of owing the Feds? What loopholes are they using? I’m pretty sure those are mostly the province of the upper end of the spectrum.”
I agree that the upper end of the spectrum is able to get more breaks, as an example using charitable donations as deduction, but those same rules apply to people making less money as well. While my charitable donations aren’t the size as the Gates Foundations, I still get to deduct them the same, there’s just a few less commas. If I had to guess, and because there are so many conflicting numbers out there its just that, a guess, I would bet that there is a decent percentage (ten to twenty) of taxpayers out there who initially owed less than $10,000 were able to get a return back. Locally there was a story of a man who owned four RV’s. He lived in one, and kept the others, and because he was able to claim them as additional homes under existing IRS rules, he received deductions for them. There’s example like that all over (I think one of my more recent favorites was the guy who lived on Park Avenue but received $40,000 a year in agricultural subsidies because he was part owner of a farm in Missouri).
The breaks and loopholes are there, the problem is the tax code is so befuckled in many cases you have to pay someone to find them, your “ordinary” taxpayer doesn’t know about them, preferring to take the standard deductions. A few years ago I was self employed, my wife was self employed in addition to working. And we lived in one state and worked in another. First time I did the taxes we owed mid four figures. Took my taxes to a pro, and I got a check in the low three figures, which I then cashed and gave most to my tax preparer. And I would bet there a similar percentage of taxpayers who lower what they pay by the same method. Buffet, Gates, the lawyer who lives across the street from me. Then again, all those people in the commercials who took their returns into HR Block to see what they missed and got larger refunds as a result didn’t appear to be in the “Upper end of Spectrum” either.
At the end of the day, I would be the majority of Americans does what they can to pay the least they can. Some just try harder than others.
“At the end of the day, I would beT…”
For want of a T
Scalzi: is there really an argument that the Congress does not have enumerated in its Constitutional rights and duties the ability to levy taxes?
People who don’t understand the basic concepts of constitutional law shouldn’t comment on it.
“Congress by merely calling an act a taxing act cannot make it a legitimate exercise of taxing power under § 8 of article 1 of the Federal Constitution, if in fact the words of the act show clearly its real purpose is otherwise.” — from the majority ruling in Nigro v. United States (1928).
Congress never called the individual mandate a tax. It doesn’t behave like a tax. It isn’t enforced like a tax. It’s completely unlike a tax in every way that matters. Roberts’s decision is the most transparently political one I have ever seen from the Supreme Court.
Even when those comments are interrogative, as John’s was? Yes, yes, rhetorical interrogative, I know, but an interrogative none the less. The argument that those who lack particular knowledge should not ask questions is pernicious. A Socratic question is still a question, not a declaration, and as such literally invites debate.
John’s point was that even conservatives recognize the Congress’s power to levy taxes. He made no specific argument that the individual mandate was, in fact, a tax. The thesis of his argument was that the Justices keep their own counsel, whether that counsel is political or apolitical. You might disagree with that, as many here have in asserting their belief that Roberts was strong-armed by fear for self or the Court, but pretending his thesis was on the correctness of the ruling itself is at best misreading his original post and at worst intellectually dishonest. I choose to assume the former.
Yet, by your very argument, the label does not determine its constitutionality. That that argument has to apply both ways is not a matter of understanding constitutional law, but of elementary logic.
I tend to agree, but this is still debatable.
This is the crux of the matter, and will only be resolved once the shape of its enforcement (if any) shakes out.
Matters to whom? Values require an evaluator.
“People who don’t understand the basic concepts of constitutional law shouldn’t comment on it.”
I agree entirely, Wolfwalker. You appear not to understand them, however, if you wish to argue that Congress does not have among its enumerated powers the ability to tax. In which case, by your own directives, you know what to do at this juncture.
That said, if you have a problem with the mandate as a tax, you’re best to bring it up with Chief Justice Roberts, not me. I am sure he will find your arguments regarding the basic concepts of constitutional law amusing, at the very least.
@Todd: why are you guessing, and what is the basis of your ten to twenty percent? You made a very specific assertion about the use of advantage and ‘loopholes’, so I would assume that you have some reason for saying so other than picking a number out of the air. I find it difficult to believe that people very close to the poverty line are making charitable contributions or deducting home-mortgage interest so as to push their gross income below the taxable level, but be that as it may, those are not “loopholes”. That is the tax code working as intended.
@wolfwalker: if you wish to convince people you have a firm grasp of Constitutional analysis, it would help to avoid demonstrating that you don’t. For example, your citation to Nigro says that something is not a tax just because Congress calls it a tax. If you actually read the decision, Roberts points out that the opposite is also true – if something is a tax, it doesn’t stop being a tax because Congress calls it something else (in this case, a “penalty”). Have you read the opinion you’re criticizing?
A person doesn’t have to be close to the poverty line to take deductions to avoid paying in. Unless your saying that 50 percent of the taxpayers who did not owe federal taxes are at the poverty line?
I would guess, of those 50% who did not pay income taxes, ten to twenty percent owed before taking deductions that put them in that 50%. Get a CPA or tax preparer drunk and they’ll tell you some stories.
As for working as intended, we’ll have to agree to disagree there.
@Todd, I’m really not sure what you’re trying to say here, but I’m not interested in debating wild-ass guesses. As for CPAs and tax preparers, I have a parent who is one, and I don’t have to open a bottle to hear stories about people and companies at the other end of the spectrum, and the games they play to make sure that they keep every one of their scrillions of dollars. So I hope you’ll forgive me if I’m not exactly panicked at the idea that somebody whose income is $50 over the EIC cut-off is going to sneak in under the wire by giving their vast disposable income to the Red Cross.
Todd: There’s way to much welfare out there period IMO. Plenty of people and Corporations are receiving benefits that shouldn’t apply to them,
Hello, my name is Todd. I oppose anyone getting benefits that shouldn’t apply to them. Anyone. Individuals or Corporations. Because I’m all about fairly applying the law to everyone. Now that we’ve established just how fair and unbiased I am, allow me to spend the rest of my time on this thread talking only about people at or near the poverty line not paying taxes. Please do not take the fact that I spend no time talking about corporate welfare as any sort of an indication of my bias. Remember, I am completely fair and unbiased here. I am opposed to anyone getting benefits that shouldn’t apply to them, whether they live below the poverty line, or just above it… er… I mean…
I would guess, of those 50% who did not pay income taxes, ten to twenty percent owed before taking deductions that put them in that 50%.
Please repeat after me: making up evidence to support my side is not arguing, it is fantasizing.
Example: I would guess that all of the people taking the EIC deserve it and further that they are all upright parents with adorably cute children, and that those children all hope for ponies.
That something doesn’t behave as a tax doesn’t mean it isn’t constitutional under the authority to edit the tax code. Penalties for non-payment of taxes are not taxes themselves but are authorized by the ability to edit the tax code.
Good point, Liberal Dan. And contrariwise, the fact that something is constitutional under the authority to edit the tax code doesn’t make it a tax.
Roberts voted using his own SCOTUS policy. He did not do a full Roe v Wade pretzel but he did perform a major contortion to both stop a scope increase in the commerce clause while not infringing on the responsibilities of the other branches of government. He made a classically conservative decision by ignoring what the supporters of the ACA argued. He also told the voters to grow up and fix it if they did not like it. I can wish he threw it out but I cannot say he was less than conservative in his approach.
by ignoring what the supporters of the ACA argued
Since the supporters of the ACA explicitly made the tax argument in both their written and oral arguments, it is clear that you have no idea what you’re saying.