Solved: “Randy Barnett made a wish on a cursed monkey’s paw that his commerce clause argument would be accepted. It explains everything, no?”
Seriously, here’s what I think happened. Roberts initially voted with the others to throw out the whole law, and has spent the last several weeks trying to pick up at least one more vote (perhaps from Breyer or Sotomayor — Ginsburg and Kagan were never a possibility) to make it 6-3 instead of a narrow 5-4. At the end, he gave up, and decided to narrowly keep it instead of narrowly strike it down. I think that explains the facts, and the bizarre opinion, which was nowhere near as cogent and well thought out as what became the dissent. And I’ll bet that the new minority is pretty angry at him right now (and have been since he switched).
Yep. Roberts is allergic to striking down significant legislation on a 5-4 vote.
Rand,
Yeah, your scenario is plausible and probably correct. I believe Roberts did not want this law ruled unconstitutional at this time by a 5-4 vote. Why not? We may never know.
BlueMoon
This is just bizarre (though quite possibly correct). How is upholding an unconstitutional law that fundamentally transforms the relationship between serf — I mean citizen — and government 5-4 better than striking it down 5-4? What power does anyone, including the President, have over the Court for him to fear that ruling?
What’s Obama going to do, go on TV and say mean things about him? That’s only about one step above holding his breath until he turns blue.
I’m completely at a loss. All the plausible explanations are frightening.
Well, it could energize the Left and get Mr. Obama reelected, and he could have a second term hat trick of three appointments.
Yes, decisions of the Supreme Court are Holy Writ from On High, and Mr. Obama is not going to send Federal Marshals to the justices homes. But there is a feedback loop around the court in terms of how court decisions are preceived, how that effects election outcomes, who will get appointed, and what their confirmation battles will be like.
I mean suppose Health Care Reform was tossed out and Mr. Obama got reelected. Would that be a fair chess-game loss exchange?
Well, it could energize the Left and get Mr. Obama reelected, and he could have a second term hat trick of three appointments.
Why would it do that? The law was utter fail and Obama was its architect. Now, instead of sweeping aside remarkably bad and unconstitutional law, we’ll have to get rid of it the hard way. And that might just not work. It gives a long term wedge issue to the Republican party, who just might not be motivated enough to do anything about it.
How do you know the law is unconstitutional given that a Supreme Court majority rendered an opinion that says otherwise? Well. because Mr. Hallowell understands the Constitution better than Chief Justice Roberts, why a 7th grader in a public school civics class knows the Constitution better than Justice Roberts.
Maybe what is Constitutional or un-Constitutional is not decided on some intrinsic truth but as the result of a process (elections, Supreme Court appointment votes, Supreme Court decisions, more elections, future appointments), a process, by the way, that is specified by the Constitution.
So maybe we need to vote in leaders who will appoint Mr. Hallowell, or better yet, a 7th grader with good marks in civics class, say, to an Appellate Court position in the proper district that serves as a “farm team” to the Supreme Court, and we need to elect a President who will promise to fill the court with persons “Who can read the Constitution, it is not a terribly long document and it is written in lucid prose that should not challenge a 7th grade reading level, and someone who will take it on face value that it means what it says and render opinions accordingly.”
So we will have to get rid of the Affordable Health Care Act the hard way, through the political process, by volunteering for election campaigns and pounding the pavement to get like-minded people out to the polling places. That process is also in the Constitution. And if we are successful, maybe we can get reasonable 7th graders on the Supreme Court (is there an age test as with the Presidency?) In the mean time we should stop complaining about how unfair this whole thing is.
Rand, your guess makes a lot of sense to me.
I’ve seen speculation that Roberts didn’t want this to be another Bush v. Gore, yet another highly controversial decision down ideological/party lines, that would delegitimize the Court. A key is, I believe, his statement to the effect that the Court can’t save us from the consequences of elections. Obama’s “we won” statement, like it or not, was true. The Dems used their large majorities to ram this through, though just barely (I never believed the drama, figuring the fix was in no matter what).
Talking about this case with a friend today, I recalled that there is already ample precedent for using the tax code to encourage certain behaviors- the mortgage interest deduction is a good example. Yes, it’s not the same (positive vs. negative incentive), but it’s perhaps a similar kind of logic, like it or not.
So instead of making a highly controversial decision along party lines that delegitimizes the court, he… made a highly controversial decision along party lines that delegitimized the court.
Yeah, that’s all well and fine, but he should have just said, “Damn the torpedoes, I’m gonna take this sucker out.” (That’s as close as I come to speaking legalese.)
This was one of the worst decisions in Supreme Court history. I can’t see any good coming from it.
I believe one of the things he was dodging was having every leftist lawyer and activist judge gunning to overturn or revisit the decision, no matter how many years it took. They won’t dare risk challenging a pro-Obamacare ruling no matter what limits it places on the commerce clause, and if Romney wins and the Republicans take the Senate (both likely), then Obamacare gets repealed anyway.
if Romney wins and the Republicans take the Senate (both likely), then Obamacare gets repealed anyway.
I wish I shared your optimism, but I don’t.
This article describes some of the seemingly inconsistent parts of the SCOTUS PPACA rulings and dissents, and offers a scenario explaining those oddities:
Reading the Tea Leaves in the Supreme Court Opinions
http://prospect.org/article/reading-tea-leaves-supreme-court-opinions
And here’s a piece by Mark Levin describing what he considers a significant oddity:
http://www.nationalreview.com/corner/304459/mark-levin-not-so-fast-commerce-clause-kathryn-jean-lopez
I don’t think there’s an alternate universe where Roberts was ever comfortable striking down the entire law. Obviously, the lefty justices weren’t compromising, but I don’t think Roberts got any movement (surprisingly so, considering Kennedy’s such a squish) from the conservative justices on just striking the mandate, but keeping the law. It was all or nothing and he just “all*.”
*and he just chose “all*.” is what I meant to type.
Rand needs to get comments an edit button.
Too bad Roberts decided to be “well-liked” instead of following his obligations under his oath.
How do you know the law is unconstitutional given that a Supreme Court majority rendered an opinion that says otherwise?
The premise of the original post was that Roberts found the law unconstitutional and then switched his vote to preserve the legitimacy of the Supreme Court.