isn’t necessarily the Chief Justice John Roberts-written opinion – or rather it is necessarily going to be the Roberts-written opinion for very long. In his majority opinion, Roberts wrote that the interstate commerce clause does not give Congress the power to mandate that individuals purchase a particular class of product. Some are taking that as good news. Fine. I’ll take what I can get.
But Justice Ginsburg wrote a concurrence joined by the other three liberal Justices that upholds the mandate on commerce clause grounds. That includes the two Justices appointed by President Obama. To the extent that this ruling makes it more likely that President will be elected to a second term, it becomes that much more likely that one of the five non-liberal Justices (and two of them are in their mid-seventies) will be replaced by a liberal Justice. In that case, with a liberal majority on the Court, the Ginsburg concurrence will, in practice, become the majority opinion if a similar case comes up. The “good news” might be short-lived.
June 28th, 2012 | 12:25 pm
Again, Pete, I must object to your doom and gloom, if indeed I’m understanding your posts correctly. Perhaps too much time spent reflecting on Greek chaos has dimmed your hopes for positive outcomes in politics? There is an election coming up, and the outcome is by no means certain. The Court has given the candidates a huge reason to make this THE BIG ISSUE, and we should be all about getting Roberts’ word out to the people that “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, WHO CAN BE THROWN OUT OF OFFICE IF THE PEOPLE DISAGREE WITH THEM. It is not our job to protect the people from the consequences of their political choices.” (emphasis mine, though the verb ‘thrown’ may have been chosen carefully by Roberts)
June 28th, 2012 | 12:49 pm
Exactly right. I really don’t want to read the Ginsburg opinion (apparently also around the 50-page mark), but that’s where you’ll see the shape of our future governance if Obama is re-elected.
June 28th, 2012 | 1:56 pm
Ramsey (Mr. Ramsey?), I would love to think I’m too pessimistic, though my interpretation of the POLITICAL impact of this ruling is limited. What happens with the Bureau of Labor Statistics, the European banking sector, and the economy generally will matter more in this election than the ruling today. Still, this ruling makes it easier for the President to sell Obamacare as reasonable (if not entirely desirable) to persuadables and makes it tougher for Romney to make the case against Obamcare. That’s not nothing.
That section of the Roberts majority opinion would be more convincing (and relevant) if he had been asked to rule on the policy desirablity of the individual insurance purchase mandate rather than its constitutionality. If he really thinks that the measure is constitutional, then he he ought to sleep well. If he ruled in favor as some kind of act of judicial statesmanship (well… maybe it will get repealed anyway…and maybe it will help reconcile some of the left-of-center to some decisions they don’t like…and maybe liberal Justices will be less likely strike down otherwise constitutional laws they don’t and won’t impose their own policy preferences if I set a good example) then he he just did a wrong to the Constitution. He would also be delusional on how the left-of-center will react.
I’m a lot more confident of the first paragraph than the second.
June 28th, 2012 | 3:10 pm
I have been arguing prior to the decision that given a choice between winning the case and winning the election, conservatives were better off opting for the former.
It is of course not even clear that the decision will help Romney.
In fact, I think in many ways the decision works to Obama’s electoral advantage – First, it takes the edge of the claim that the Bill (and therefore Obama) is extreme. Moreover the legitimization of law may boost the Bill’s popularity more than Republicans realize at this point..
Second, the publicity from the case has given the media the opportunity to publicize the many perceived advantages of the plan (the goodies, especially), something they will be more than happy to do.
The
June 28th, 2012 | 4:23 pm
Ramsey, is it really not the case that the Court is not meant to “protect the people from the consequences of their political choices”? What if the choices at any given moment are contrary to the more fundamental choices that they’ve made in constituting the government. What if the choices of some faction, even if it is a majority faction, unduly infringe the rights of the minority? In short, isn’t the judicial deference you applaud ancillary to the question of whether the Constitution is rightly interpreted–you don’t seem to see much behind that question.
I also have to comment on something you said in the previous thread. It seems to me you gloss over some important particulars when you eagerly point out the contradiction between conservatives praising deference in “social issue” cases, and lamenting it here. In Casey, I read Scalia to say that, deference to state legislatures is warranted by Roe’s own suppositions–that he’s being truer to Roe than the majority. That’s because Roe posits the personhood of the fetus is too inscrutable for the judiciary to define, and therefore to extend 14th amend protections. But in defending the right to abort, the Court is actually undermining it’s own supposition that the personhood of the fetus is ambiguous: to abort, the fetus must just be a fetus. By contrast, Scalia says that if the Court really meant they couldn’t define personhood, they wouldn’t try and they’d leave it to the moral sensibilities of particular communities.
In the healthcare case, Casey’s argument for deference doesn’t and shouldn’t apply, and that’s why Scalia can argue for deference in Casey and not healthcare.That’s because whether the Constitution allows the government to penalize by way of a tax is not a question bearing on the mystery of life, it bears upon the written Constitution and the meaning of the taxing power. In other words, I don’t think your quite fair to the conservatives that you’ve singled out.
My final thought: Patrick, I tend to agree with you, but would just point out that there is a reason the president was so emphatic that the mandate was not a tax when he was trying to pass the law: taxes are unpopular. Republicans seem to have already taken up this tact. How much fruit it bears is another question indeed.
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