Yesterday CBS News dropped a stunning bombshell when they published insider information about the machinations of the ACA Health Care ruling by the Supreme Court. The reporter is Jan Crawford, and everyone wonders who her sources are, whether clerks or the justices themselves. She says she had two sources - standard in most news stories. Maybe she just had some non-denial denials, as Woodward and Bernstein had while getting two sources in the Watergate case?
She reports that Chief Justice Roberts had originally sided with the conservatives to strike down the health care mandate, but Roberts didn't agree with Scalia and the others that they should strike down all of Obamacare. So he wrote his own opinion allowing the mandate as a tax, and the liberal justices got on board with it.
Ironically, Justice Anthony Kennedy - often thought of as the "moderate swing vote" - was the one determined to bring Chief Roberts back to the fold, badgering him for weeks to flip again and strike down Obama's plan, described in the article as a "relentless" effort. In the end, the conservatives put out an "unsigned dissent" ignoring Justice Roberts' ruling - rather vindictive.
Therefore, the shunning of Roberts as a traitor began long before the public knew of the verdict. The fury of Republicans on Twitter and everywhere else must have come as no surprise after all. No wonder Roberts told reporters that he was planning to go to Malta to teach a class: “Malta, as you know, is an impregnable island fortress,” he told reporters. “It seemed like a good idea.”
Roberts focused the majority opinion on a much more difficult legal proposition: The tax power. But Roberts also would limit Congress' authority in future cases under the commerce power.
Roberts then engaged in his own lobbying effort - trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting."
Even in Roberts' opinion, which was circulated among the justices in early June, there are phrases that appear tailored to get Kennedy's vote. Roberts even used some of the same language that Kennedy used during oral arguments.
~~~snip~~~
The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.
The language in the dissent was sweeping, arguing the court was overreaching in the name of restraint and ignoring key structural protections in the Constitution. There are clear elements of Scalia - and then, there is Justice Kennedy.
"The fragmentation of power produced by the structure of our government is central to liberty, and when we destroy it, we place liberty in peril," the dissent said. "Today's decision should have vindicated, should have taught, this truth; instead our judgment today has disregarded it."
It's truly an American spectacle to see the Republicans spewing vitriol towards Chief Justice John Roberts ~ or as they are calling him on Twitter "Chief Traitor Roberts."
Do these morons have any idea what they sound like to people out here in the heartland whose lack of health insurance has been keeping them trapped in a bad job or even keeping them from having children? I can't be the only person who thinks the Republican Party the past few days sound like a bunch of cruel sore losers who would begrudge benefits to anyone less fortunate. What a bunch of hypocrites!
Remember folks ~ Every single one of those politicians and pundits on TV have Major Medical for themselves and their families. That goes for any politician on a local, city, county or state level, no matter how much they like to slam "government." That is an act - they don't really mean half the stuff they say!
And they are lying and using propaganda techniques to scare the public into thinking that Obamacare is everything from a communist plot to "take away our guns" to turning the IRS into Obama's private army. Come on - who believes this horse hockey? Rush Limbaugh is NOT the voice of truth, people. He is a whiny complainer who uses his bully pulpit to mock our President as an illegitimate criminal bent on destroying America. I think it's the opposite - it's as if he is looking in a mirror and talking to himself. The Republicans want to destroy America and rebuild it in their own image, and that's not a pretty sight.
Guess what? We won't ever see these politicians on the right cutting their own health care plans to balance the budget. No, they look out for themselves and their own familes. Why do you think these bozos want to get re-elected over and over? They are NOT volunteers. They wouldn't do it if the money and benefits weren't there, and many republicans are in the 1% anyway. They just don't want to help anyone else. They are cold, mean, and lacking basic empathy towards other human beings, and they don't even pretend to care anymore.Even Romney doesn't try to court the voters on the fence by displaying empathy. I don't think he has any.
What do the Republicans and Teapublicans have to do or say to prove to "undecided voters" that they are nasty people? Kick a dog in the street? They've already had the vomiting dog on top of the car. Slap a woman? They are threatening women with transvaginal probes and calling them sluts and whores - isn't that enough? Yell fire in a crowded building? That is what they do in a figurative sense every single day when they insist that Obama is single-handedly bringing on Apocalypse Now.
And no, I don't buy the theory that "both sides are just as bad" and I think the constitutionality of Obamacare proves that. The President ironically now has a "mandate" and the seal of approval of the Supreme Court, thanks to that low-down scumbag, Dread Pirate Roberts. But it's the Republicans who can't have it both ways. If a ruling was good enough for Citizen's United to be constitutional, then it's good enough for Obamacare to be constitutional. End of story . . . or it should be.
Let me explain it the way my parents explained it to me: It is always the Democrats who give us large social programs that raise the standard of living. It has been that way since Franklin Roosevelt. It was that way when Kennedy and LBJ were in office. In the old days when Republicans had more backbone, they would join in and vote for worthy programs that would help needy citizens, but now the Republicans follow their leaders like so many chickens in a pecking order, and they get so scared when the others start squawking at them. The underling Republicans hurry to prove their worth to their Overlords by slamming Obama, Nancy Pelosi, and now Justice Roberts. Insults are the new key to success in the Republican Party. But when all you have is a hammer, the whole world looks like a nail. They will say "NO!" to anything Obama puts forth so they can stay in the Republican Club, but meanwhile they have no good ideas of their own.
Shouldn't the American people have a right to the same benefits that these bloviating ignoramuses take for granted as a job perk? These nutters who pray loudly and publicly to God for deliverance from the evil Obama - yes, they even pray on Twitter and Facebook - get right up off their knees and onto the nearest soap box to slam unemployed people as "lazy freeloaders," sick children as "wanting a handout," and now a Supreme Court Justice as "Benedict Arnold" or "Judas."
We need to get smarter as a country and point out this bad behavior and lack of statesmanship loudly and often. More than that - it's just plain immoral to hate sick people and leave them suffering until they die in the richest country on earth. It's immoral to shut out millions of people from health care just because they are too young for Medicare or because they have to work three part-time jobs in this economy just to pay for rent and food.
The conservatives are taking a morally indefensible stance and I can't see it's going to help Romney win at all. He's the one who helped craft the original health care plan in Massachusetts. And his plan is still in force and 98% of the people there are covered. And that's a good thing, not a scary thing. Believe it.
Whatever the political leanings of Chief Justice John Roberts, his choice to vote with the Liberal side of the Supreme Court in the ACA ruling was an honorable and brave thing to do. He rose above the fray and followed the rule of law, not the ramblings of some right-wing talking points. I don't agree with all his decisions - Citizens United is an abomination - but in this particular case, he did the right thing.
The fact is, John Roberts has a whole host of new fans and admirers because he helped save Obama's Health Care plan for America. And we won't forget.
My favorite tweet from yesterday, and possibly from all time, was this:
I have no idea if the person who tweeted that was a liberal or a conservative, or whether he agreed with the verdict rendered. They might love Justice Roberts or hate his guts. In a literary sense it works either way because Professor Severus Snape was an ambiguous character up until the end of the Harry Potter series when we saw his true nature. Both sides saw Snape as a traitor, yet he was actually just walking a dangerous line and trying to do the morally right thing under tough circumstances. And at the end of the story, he was the "bravest man" Harry Potter ever knew.
Sometimes that happens in real life. For me, after this ruling, Chief Justice Roberts is a hero like that.
Am I being corny? Perhaps, but listen to Chris Matthews waxing poetic about Roberts yesterday:
Roberts Rules! Let's Play Hardball.
. . . Let me start with one of the great days in this country's history. Today the Supreme Court led by the Chief Justice himself decided that Barack Obama's Health Care Act squares with the American Constitution. All the drum-beating, all the horrors floated up by the right-wing fever swamps are, after today, simply the hate-vapors of the perennial rejectionists to progress, the "rear guard" funded by the Koch Brothers and the U.S. Chamber of Commerce. Today's Hero ~ Chief Justice John Roberts, who walked to the forefront of history and said yes to progress and and no to the role prescribed for him by the Right. He would not be that man, he would not let the court named for him carry historic blame for denying health care to tens of millions of Americans. He would not be the ramrod for yet another right-leaning partison-appearing Supreme Court ruling that would have been the third strike over the plate following Bush v. Gore and Citizens United. So let's start tonight by looking at this bold, defiant, grand decision by Chief Justice Roberts . . .
Earlier this week we read Justice Scalia's bizarre dissent on the Arizona Immigration case, in which he went into absolutely Pureblood Death Eater mode while comparing illegal Hispanics in Arizona to freed slaves before the Civil War and those with "contagious diseases." It's easy to see Roberts as the reverse - someone who decided to put the Law ahead of prejudices or his own personal opinions. And indeed, he ruled the opposite of Scalia in that case, as well as the ACA case.
Supreme Court expert and Pulitzer Prize-winning journalist, Linda Greenhouse, wrote about Roberts role in the Immigration decision for the New York Times:, implying that Roberts willingness to go along with the majority might have driven Scalia nuts, LOL:
The first thing that jumped out at me was the name of Chief Justice John G. Roberts Jr. on Justice Kennedy’s opinion, along with the expected names of Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor. The chief justice was, apparently, in complete agreement with the majority as evidenced by his silence – the dog that didn’t bark, you might say. He felt no need to write separately to express even a shade of difference from the majority or a hint of sympathy with the dissenting views of his usual allies. Beyond Justice Scalia’s transparent dislike for the president, perhaps it was the chief justice’s apostasy that drove him around the bend.
Yes, horrors that the Chief Justice wouldn't succumb to all the dog whistles in Justice Scalia's dissent. Maybe Roberts just isn't a racist?
About the Health Care Ruling, Greenhouse analyzed Roberts' role which is officially "Chief Justice of the United States."
. . . the title that he actually goes by, chief justice of the United States, seemed a good fit. He spoke for the country.
His decision to call the mandate a tax and to provide a clearly reluctant fifth vote for upholding it as within the Congressional taxing power was a deeply pragmatic call that saved the Affordable Care Act. Certainly by no coincidence, it also saved the Supreme Court from the stench of extreme partisanship that has hung over the health care litigation from the moment more than two years ago that Republican state officials raced one another to the federal courts to try to erase what they had been unable to block.
. . . But it is Chief Justice Roberts’s extraordinary role that is most intriguing. He has just completed his seventh term as chief justice, and at 57 could well serve another quarter-century or longer. Clearly he is playing a long game.
. . . John Roberts doesn’t like the Affordable Care Act. He went to great lengths in his opinion to show his total agreement with the plaintiffs’ core argument: that the requirement to buy health insurance was an unprecedented effort by Congress to force people into a market they had chosen not to enter, to create commerce where none existed. Justice Ruth Bader Ginsburg’s dissenting opinion pierced gaping holes in the chief justice’s analysis. But he stuck to his position, coming within an inch of invoking what Justice Ginsburg ironically labeled “the broccoli horrible” and warning that “under the government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables.”
Since there were four justices who also saw the mandate that way, as Justices Scalia, Thomas, Alito, and Anthony M. Kennedy explained in an unusually structured opinion that all four signed as co-authors, the mandate might have died right there. But then the chief justice abruptly pivoted and declared that because the penalty for not buying insurance functioned as a tax, it could be upheld as a tax and the mandate was therefore constitutional.
“I think this term was the turning point in the legacy of John Roberts,” Harvard law professor Laurence H. Tribe said in an e-mail to the Globe. “He now has a chance to be a truly great chief justice. Of course, he dissented in some of the liberal-leaning decisions of the current largely conservative court, but when push came to shove he was where he needed to be.” Tribe, who taught Roberts and President Obama at Harvard Law School, said Roberts’s decision to become the swing vote in a 5-4 decision “saved the day — and perhaps the court.”
In the same article, Joel B. Grossman of Johns Hopkins University said:
“It’s kind of an act of leadership rather than an act of ideology . . . I can’t imagine his sympathies were with expanding congressional power, but I think he recognized that there might even be a crisis if he cut this law off at the knees.”
. . . “He is going to be chief for a long time and one thing you don’t want is to lose control of the court,” he said. “This fits the model of wanting to keep the court together and perhaps even to approve something he personally found distasteful.”
Roberts must have known that the conservatives would see him as a sell-out, shun him socially, and immediately launch ad hominem attacks as bad or worse as those aimed at the President. And in fact, it started in less than 24 hours.
Ben Shapiro, Editor of Breitbart.com launched a series of damning tweets:
This is the greatest destruction of individual liberty since Dred Scott. This is the end of America as we know it. No exaggeration.
Senator Rand Paul from Kentucky took a different route, issuing a Press Release that dissed the entire decision as moot somehow, as if Justice Roberts had no authority to render a verdict. In fact, he carefully doesn't mention Roberts at all, which is telling, and refers to the majority opinion as "couple people" who "declare something." Yeah, the Supreme Court doesn't matter unless they rule your way.
Just because a couple people on the Supreme Court declare something to be 'constitutional' does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right.
Actually, Rand, that's exactly what makes it so.
. . . Paul may want to review the 1803 case of Marbury V. Madison, which formed the basis for judicial review. In other words, it's what gave the Court its teeth -- it clearly defined the Court's role in the separation of powers in the federal government, making it the "supreme expositor of the Constitution."
This means that what the Court says goes -- regardless of whether a freshman Senator from Kentucky disagrees with it.
Rand Paul had so much criticism over his silly remark that he was still trying to explain in an interview the next day: Interview From Marketplace Health Care:
Hobson: Well thanks for being here. I want to start by asking you about some comments that you made yesterday that have gotten a lot of attention. You said: "Just because a couple people on the Supreme Court declare something to be constitutional, does not make it so. The whole thing remains unconstitutional." Do you stand by that statement? Paul: You know, I still agree with Scalia, Thomas, Kennedy and Alito that the Constitution doesn't justify the law. Hobson: You're agreeing with the dissenters -- but that was not the ruling that the Supreme Court came down with. Paul: Right, but that's all I'm saying, if if you ask Justice Scalia if he thinks the law is Constitutional, he'll still tell you "no." So I'm entitled to have my opinion as to what is constitutional and what is not. No one's talking about whether the ruling has validity or not, I'm just saying that I agree with the dissenters that don't believe the law is constitutional
Okey dokey.
Next . . . the apoplectic and hyperbolic (and repetitive) Rush Limbaugh slamming Roberts as some kind of Evil Taxman out to destroy the world:
What we have been told by the Chief Justice of the Court and four liberals on the court - Obamacare's just a massive tax increase.
. . . the Chief Justice was just hell-bound, hell-bent to find a way to make this law applicable, so you know what? As a tax increase it works because there's no limit on the federal government's ability to tax....
. . . John Roberts said (mocking voice) "It's not our job to forbid this, it's not our job to protect people from outcomes, it's not our job to determine what is right or wrong or any of it. We can't forbid this if it's what the elected representatives and the people want." . . . But what if we were deceived?
. . . What happened today was that we were bludgeoned with a tax that requires us to do what the government mandates. We must do what they say. . . . It is a 'stealth tax' and that's what it was all along. A massive behavior modification program.
. . . Chief Justice says (mocking voice) 'I can't forbid this. It's not our job to protect the people from the consequences of their political choices. I gotta find a way - Congress wants this - I gotta find a way to make it happen. Okay - we'll call it a tax!'
Let’s talk about Roberts. I’m going to tell you something that you’re not going to hear anywhere else, that you must pay attention to. It’s well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts’ writings you can see the cognitive dissociation in what he is saying.
Oh Lord - "cognitive problems"? Really? Does this also explain Mitt Romney's lack of memory about everything he has ever said?
That statement is nasty two ways - not only is it egregious to bring up the private health matters of a Supreme Court Justice, it's insulting to anyone with epilepsy to imply that they can't make correct decisions. But isn't this just par for the course in Republican circles ~ bad health equals bad judgment equals "no insurance for you"? Don't the Republicans always imply that people with bad health or even children with pre-existing conditions from birth are somehow tainted and undeserving? Unless you're Ann Romney with high-functioning Multiple Sclerosis, or Dick Cheney with a defective heart, or Rick Santorum's poor little daughter, or Rush Limbaugh going blind from drug abuse. Oh yeah - that is irrelevant because they all have plenty of money for the best health care. It's only the poor and unemployed who don't deserve it.
All the more reason we need universal health care so people can get help without regard to their previous conditions or political affiliations. Death Eaters just aren't good at taking care of people. So thank you, Justice Roberts.
CNN breathlessly announced that Obamacare had been overturned without even reading the ruling, and Fox followed suit. Meanwhile cooler heads announced that it was more complicated than that, and in fact, the mandate had been upheld!
Bottom line from #SCOTUS, Obama Administration wins.Challenge to #ACA fails.
The Supreme Court has ruled 5-4 that the Affordable Care Act meets constitutional muster and can be allowed to continue its slow process of transforming the nation’s health care system.
Thursday’s historic decision, authored by Chief Justice Roberts, was by no means fait accompli. Though the consensus among constitutional scholars has always been that the law’s insurance mandate did not exceed Congress’ Commerce Clause powers, its opponents erected a counterargument that quickly became an article of faith on the right. In the end, Roberts decision upheld the mandate as an exercise of Congress’ taxing power.
Reaction from the Right is predictable!
Obama lied to the American people. Again. He said it wasn't a tax. Obama lies; freedom dies.
Whatever the ruling is, things are going to be explosive in the morning. As soon as we get some reliable reports about the opinion as well as the dissent, I will post those here in the Snark Lane.
No one knows whether the health care law will be upheld, but it might give you hope to know that Tom Goldstein, publisher of Scotusblog says it will be upheld and NOT struck down. Maybe the Tea Party should think about that before they dress up like Minutemen and start crowing like roosters on the steps of the Surpreme Court tomorrow morning.
Goldstein writes:
In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow. Far less important, I expect the principal opinion will be written by the Chief Justice; a majority of the Court will find it has jurisdiction; and the challenge to the Medicaid expansion will be rejected.
Most observers disagree. There are certainly good reasons to believe the Court will invalidate the mandate. Most important, at the oral argument, the questions of two critical Justices – Justice Kennedy and the Chief Justice – were on the whole critical of the mandate’s constitutionality.
But in the end, based on the entire mix of information I have, I think the mandate will not be struck down tomorrow. (I don’t have any inside information, nor does anyone else.) My prediction includes the possibility that there will not be a single majority opinion for the theory on which the mandate is upheld, and even the thin possibility that the Court will not have a majority to find the mandate constitutional.
Are there clues to what the Supreme Court ruling will be on President Obama's Health Care Plan? Possibly.
Most legal prognostications revolve around the fact that Chief Justice Roberts seems to have put himself in control of the Health Care verdict. Is that because Roberts hopes to salvage the tarnished legacy of the Court by handing down another reasoned impartial verdict? Or is it just that Roberts really has just been "bought out" by Big Pharma and wants personal credit for a huge Obama smackdown that will further damage his chances for reelection? Are there clues within the Immigration Ruling? Does the snidely tone of Scalia's dissent mean anything?
It's really a random crap shoot, and we might as well consult the Magic 8-Ball, but here are some of the possibilities predicted in the media:
The Hill calls Chief Justice Roberts the "Player of the Week."
Unlike Justice Antonin Scalia, Roberts appeared even-handed during oral arguments on the health law in March.
Democrats also noticed that Roberts sided with Justice Anthony Kennedy and liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor on the court’s ruling on Arizona’s border-security law.
House Minority Leader Nancy Pelosi (D-Calif.) has predicted the health overhaul will be held up on a count of 6-3, which would probably mean Roberts and Kennedy joining forces with the left-wing justices.
Still, the administration did not perform well during oral arguments and most legal experts expect the court to strike down all, or some, of the law.
Here's an assortment of tea leaves from ABA Journal:
The ACA Litigation Blog says a Roberts opinion is likely “marginally heartening to the challengers.” Forbes, on the other hand, says a Roberts opinion likely means the health law’s insurance mandate will be overturned.
Some experts who talked to Politico saw significance in the fact that Roberts joined Kennedy's opinion in the immigration case. One of them is George Washington University law professor Jeffrey Rosen. "The nationalism in the Arizona case might be a harbinger of similar deference [to the federal government] on health care,” Rosen said.
But SCOTUSblog founder Tom Goldstein told Politico it would be "totally wrong" to see a link between Roberts' stance in the immigration and health law opinions. “They’re very different cases," Goldstein said. "There are overlapping themes about states’ rights, but the federal immigration power is not the same as federal commerce power
Based on his past decisions and withering remarks from the bench during oral arguments, it's almost a foregone conclusion that Scalia would vote to strike down at least the core provision of the healthcare law that requires most Americans purchase to health insurance. Justices Samuel Alito and Clarence Thomas, who wrote separate dissents in the Arizona immigration dispute Monday, are likely to be in that camp as well.
Roberts wrote no separate statement on Monday, a move that showed solidarity with the Kennedy majority. In addition, he likely is focusing on the healthcare dispute to be unveiled Thursday. One thing is known: Roberts is concerned about the Supreme Court's place in history. He has spoken about the need to preserve the integrity of the bench in deeply polarized Washington and has touted the value of unanimous or near-unanimous opinions.
And finally, here's an interview with Laurence Tribe, professor at Harvard Law School, in which he says he believes the Health Care Law will be upheld. Via MSNBC
Laurence Tribe: I do think that the Court will surprise a lot of people when it probably upholds the affordable care act in a decision by Chief Justice Roberts .
Chris Jansing: You think it will be upheld in its entirety?
Tribe: I think it will be upheld in its entirety. Of course I can be wrong. Everybody can be wrong, I can be wrong but I do think it will be upheld. I do think that will be a partial antidote for the way people felt, not only after Bush versus Gore, but Citizens United, and other cases where the Court has reached further than it needed to to grab onto issues that were the middle of the political battle and then often not to act in a particularly judicious way. I think Justice Scalia in particular ought to consider the harm to the Court as an institution when he indulges his famous wit in order to stab the President.
Jansing: There are a lot of people who have written that they are concerned about the perception of the Court. In terms of its popularity it is down in the 40s, the most recent polls have shown that the American people have concerns about the Supreme Court being split much the way that America is divided politically. Are their concerns justified?
Tribe: I think justified to some extent. The Court, in a nation like ours where political and legal issues are mixed up and often intertwined, is often criticized. The people on the losing end often say that it was just politics but I think it's the Court's responsibility to act like a Court, to not reach out to issues not presented by the case, to not make comments about a recent press conference the President holds just to make a political point. When that happens it is not simply a matter of the law being politically charged but a matter of the Court being politically unwise.
It's critical that we not lose faith in our institution, bad enough when people, only 9%, one wonders who they are, have faith in Congress but when people lose faith even in Judges who are honestly trying to do a good job, then I think that endangers the institutional stability of the country.
Jansing: As someone who knows Justice Roberts , do you think he has, as has been reported, great concerns about the Court being viewed as too politicized, and his job to somehow right it?
Tribe: Well, I think he is certainly committed to the idea that the Court should-recognized as an institution that, as he put it during his confirmation hearings, is a kind of neutral umpire. There is no such thing as total neutrality when it comes to politically charged issues like abortion and the structure of political campaigns, but at least it's important for the judges not to basically take off their -- take off their robes and allow themselves to simply shoot off at the mouth, as some of them have begun doing. And I think that the Chief Justice is likely to be concerned about the place of the Court in history and is not likely to want the Court to continue to be as deeply and politically divide. That doesn't mean he will depart from his quite conservative philosophy. You can be deeply conservative and believe the Affordable Care Act is completely consistent with the United States Constitution, and I think that is most likely to come out on Thursday.
