Supreme Court

"Chief Justice Roberts appears particularly in tune with the exercise of national power."


Are there five votes on the current Supreme Court to strike down the health insurance mandate as a violation of Congressional power under the Commerce Clause? New York Times legal reporter Linda Greenhouse doesn't think so:

The challengers invoke and seek to build upon the Rehnquist court's "federalism revolution" that flowered briefly during the 1990's. In a series of 5-to-4 rulings, the court took a view of Congressional authority that was narrower than at any time since the early New Deal….

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O'Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don't believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn't issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the "special solicitude" that the court's majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general's effort to prevent doctors in Oregon from cooperating with that state's assisted-suicide law.

It's also worth noting that conservative Justice Antonin Scalia did his part to thwart that "federalism revolution" by siding with the majority in 2005's disastrous Gonzales v. Raich, which held that the intrastate cultivation and consumption of marijuana somehow still counted as interstate commerce, resulting in the Court striking down California's popular medical marijuana law. Rehnquist, O'Connor, and Justice Clarence Thomas all dissented in that case, with Thomas presciently remarking, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

For more on ObamaCare and the Constitution, see here and here.

NEXT: 'The First Amendment Cannot Be Encroached Upon for Naught'

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  1. We’re counting on a wise Latina.

    1. Good luck with that, ha ha ha.

  2. It also suggests that in the “real world,” justices tend to decide second-rate cases in a first-rate manner and first-rate cases in a second-rate manner. In other words, the more that is at stake, the more they will find a way to let their personal feelings decide the matter, and so you get, e.g., Dred Scott, Roe v. Wade, and Bush v. Gore. Remember Scalia’s awkward admission that he only uses substantive due process “when I have to”?

    If this matter does reach the Supreme Court, I suspect that the outcome of the 2010 elections could be dispositive. If the Democrats basically hold their own, I find it very hard to believe that the Court would have the nerve to overturn such a massive piece of federal legislation. If the Republicans do well, on the other hand, I think it would be more likely. If the Republicans won the Senate (hard to believe), the odds might be more like 50-50.

    Maybe the Supreme Court follows the election returns. When it isn’t making them up, that is.

    1. Seriously, what was wrong with Bush v. Gore? It was decided 7-2 that the Supreme Court of Florida was violating due process. The contentious part came in the remedy decision.

      1. That’s because it was the “remedy” announced that Florida would not be allowed to conduct a recount that would meet the U.S. Court’s standards for fairness. As three of the four dissenters put it:

        “What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

        For my own part, I think the “moderates” on the Court were more contemptible if less wicked than the majority. They signed on to the original 9-0 decision in which the Court granted itself jurisdiction over a state supreme court’s right to interpret state election laws. I more or less despise Rehnquist, but he was a master of court politics and tactics. The moderates were babes in the woods, putty in his hands. If only he had been a liberal, ceteris paribis, or whatever the fuck the saying is.

        1. In the words of the great marion barry — get over it!

          1. Well, the bitch did set him up.

        2. They signed on to the original 9-0 decision in which the Court granted itself jurisdiction over a state supreme court’s right to interpret state election laws.

          That will happen when a State Court nakedly violates civil rights by completely and totally ignoring the plain language of the Florida statute.

          Bush v. Gore was fair.

        3. From the per curiam

          “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.”

      2. “Seriously, what was wrong with Bush v. Gore?”

        Alan didn’t like the outcome, that’s what.

  3. …resulting in the Court striking down California’s popular medical marijuana law.

    Fact check, please! As I understand it, Proposition 215 still stands in California, but the Feds are still allowed by the SCOTUS to raid medical marijuana grow ops.

  4. I’ve always wondered if they have the Constitution printed on the toilet paper in the Supreme Court justices’ bathrooms.

  5. Today it struck me that maybe what we should hope for and promote is the kind of secession that Governor Perry of Texas “joked” about a few months ago. If Texas (and even better, maybe even a bloc of surrounding states too) were to make a serious bid for secession, I’d be sorely tempted to move there and escape the new statist future of the USA. At the very least, the liberal angst arising from such a movement might make Democrats suddenly more open to the idea of repealing HCR.

    Yes, it’s pretty sad when your hopes and dreams have been reduced to a fantasy about Texas secession.

    1. Secession would quickly become unpopular when the voters discovered they would lose their Medicare and Social Security.

      1. Not when they realized that those programs are bankrupt.

        We’ve already reached the point where the withdrawal of *real* funds on those accounts exceeds the deposits.

        They have absolutely nothing to lose financially. The new states could just determine to create a new flat-rate entitlement with an expiration period.

        1. I doubt Texas would recreate an entitlement system immediately after secession. But you could be right.

          Texas could implement an Alaskan style socialist oil entitlement scheme to pay residents from private profits.


          Just pulling your leg on that last sentence.

          1. “”I doubt Texas would recreate an entitlement system immediately after secession. But you could be right.””

            How much of Texas do you think will be left after the civil war? You don’t really think the feds would just let that happen do you?

            But after the civil war, if Texas wins, they could go to the UN and ask for money to rebuild.

        2. It depends. If the states that leave are primarily southern states, there might be a nice budget fix. Most of those states, Texas is a major exception, are net tax recipients. Losing those states would close a huge hole in the budget. Toss in Arizona and Florida and SS and Medicare would be solvent for another 100 years.

          1. The New War of Northern Aggression – cut the Red States loose from entitlements.

            1. Come to think of it, because what hammeredHead says below is true, it probably would lead to war. Old people being a new country would still be eligible for SS and Medicare, but the feds would lose a ton of people paying into the system. A new war to keep them in would be necessary to make sure that SS doesn’t go bankrupt faster.

            2. Texas is a net tax donor. Considering that most of the red states that receive more than they pay out are small, poor states with military bases, the US government would still lose out if these states succeeded. They’d get to keep at least the infrastructure, and I don’t think that a bunch of military bases will spring up in the blue states.

              The main reason that Blue states are net tax donors to red states is that the BLue states have higher costs of living and inflated paychecks to pay that higher cost of living. A dollar of aid in the south goes much further than a dollar of aid in LA. I’m all for cutting states that rely on federal donation loose. You’ll get no argument from me there, since I am a Texan.

              1. “The main reason that Blue states are net tax donors to red states is that the BLue states have higher costs of living and inflated paychecks to pay that higher cost of living.”

                And the marginal tax rate doesn’t care about the standard of living that last dollar is buying you.

                1. I agree, but my point was simply about the spending side. If you spend 1000 dollars in poor state with half the cost of living, it goes further than if you spend the tax dollars in California.

                  If we moved more military bases to blue states like california or new york, for example, taxes would have to be even higher to pay for these facilities. Plus the paychecks would have to be higher. Blue states are saving money by outsourcing their spending to cheaper red states.

              2. “”They’d get to keep at least the infrastructure, and I don’t think that a bunch of military bases will spring up in the blue states.”””

                Bullshit. Tons of ordance would destroy and deny Texas the use of those bases. The fed will either capture the refineries or blow them up. The feds will do a shock and awe Texas style.

                1. Not if it was a friendly break. I don’t think that succession has to be violent, and I wouldn’t want any violence anyway. I’m a lover not a fighter.

                  1. I don’t think that texas would need half of those military bases to survive as its own country. The only countries that we would have to fear would be Mexico or the USA.

                  2. It will never, ever be a friendly break.

                    1. Why not? Does California and New York really want to hold onto Texas? Without Texas, the single largest Red state would be gone. I think they would be falling all over themselves to see Texas gone. I hope everyone who remains likes being a member of the USSA

                    2. Because

      2. Hah! Take it. I live in TX, and I’d jump at the chance to be free of Medicrap and Socialist Insecurity.

      3. Not true. You don’t have to even be a citizen to get SS. All you need is 40 quarters of vesting. It is true that the young will lose it, but I assume that they would love their instant increase in take home pay.

        1. If they cut a deal saying that Texas had to give up its SS and Medicare receipts in order to succeed, I think that Texas would accept. We’d already save money from not having to pay into the federal system, since Texas is a net tax donor, and I assume that includes SS receipts, and we’d get to spend that 15% of our income on other things. Texas would probably keep a tax in place to give more benefits to SS and Medicare recipients who have already been receiving it, but they’d be free to spend most of that money they had been paying on other things. Right now, we have no choice.

    2. But then you’dhave to force yourself in to the groupthink concerning “conservative” mores and values.

      So much for your escape from big government statism.

      1. Mores and values are not law and you are responsible for the mental fortitude to withstand any kind of groupthink.

        You can’t even buy beer at a grocery store in Pennsylvania. Though as a Texan, I’m pissed I can’t buy liquor on Sunday. Fucking idiot blue laws.

        1. The younger generation of texas is far more bohemian than most people realize.

        2. They’re not law except when they are.

          Homosexual marriage, drugs, gambling, etc would all be legislated just as they are now in many republitard states.

          What you meant is that legislating mores and values doesn’t work, not that it doesn’t happen. Because it does. Everyday. And if you dare to go against those mores, you’re thrown in jail.

          Groupthink it is!

          1. Oh man that is so much worse than the system we have! No groupthink or stupid laws in the gold old USA!

  6. The problem here is you’re looking at the justices as if they ruled by some principals or doctrine. They don’t. Principals and doctrine are what they use to justify their purely partisan rulings. I think there’s a good chance the SCOTUS will shoot down Obamacare.

    As fully awful as OC is, it should never have been passed. Now the SCOTUS is our last hope. But the most you could say about that, if it comes to pass, is that it was the lesser of evils.

    1. ..and this is what they call “legal reasoning.”

  7. “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything?and the Federal Government is no longer one of limited and enumerated powers.”

    Clarence Thomas said all that is needed to be said about what is wrong with our current system of federal government legislation.

    The commerce clause has become (already was?) the tool to beat down free market solutions to social ills and increase government intervention in to more of our lives.

    This sentence by Thomas should be permanently tattooed on every SCOTUS judge for eternity.

    1. THAT is what they should display at the Alabama State Couthouse, not the 10 Commandments.

      1. Alabama hates private transactions between consensual individuals (see: sex toys).

  8. I’m sticking with my original take:

    The real question isn’t whether a majority of the Court realizes that ObamaCare is an exercise of plenary government power and a repudiation of the notion that ours is a government of limited enumerated powers.

    The real question is whether a majority of the Court thinks that’s a bad thing.

    1. That’s exactly right. Some clever clerks can justify the majority’s position, I’m sure.

  9. Well, that’s just terrrific. What’s more inspiring than 216 + 51 + 1 assholes deciding that the gubment can force me to by a product? 5 assholes. How uplifting.

    If Obamacare is a slippery, diarrhea crusted slope to single-payer, then upholding the constitutionality of the mandate by scotus is a mud slide to congressional economic rape. Bring on the VAT! No, the sky isn’t falling, but you can just about reach up and touch it. I sure hope Obama can turn things around with a good, solid message of hope and change this next presidential election.

    1. He’s still in campaign mode for some reason, so I’m sure Hope n’ Change 2.0 is right around the corner.

      1. Chains we can believe in!

  10. They have made a few good decisions lately, but let us not make the mistake of thinking that the conservative side of the court is significantly better on freedom generally or the constitution.

  11. Scalia’s been hating on federalism since South Dakota vs Dole in 1987.

  12. I will reiterate that as repugnant as the indie mandate is, having it struck down but leaving the ban on denying insurance to those with preexisting conditions in place would totally wreck our health care system almost immediately.

    1. Of course leaving the mandate in alongside the pre-existing condition provisions only means that our health care system will be wrecked a little more slowly.

      The thing is designed to wreck health care. That’s its purpose, and that is the one purpose Our Masters in DC are good at accomplishing.

    2. More plausibly, it would just force Congress to revoke the other conditions or seriously reduce them.

      1. That’s right. This was a pass it now and we can fix it along the way bill. As things fail, or don’t work as planned, there will be new legislation to fix it. By then, the republicans could hold Congress and the WH.

        The liberals were short sighted. Ask your friendly liberal if they would have liked George Bush in charge of their health care. The republicans will get their shot to modify the health care law one day. When they are pissed that the republicans are making changes, they need to remember who to thank for making it possible.

  13. Someone give me a short list of what the government can’t do? If the supreme court excepts the individual mandate, there is actually nothing the government can’t do. The constitution will cease to be a limiting document, and instead become an enabling document for government. Am I the only person freaked out by this?

    1. It’s not just the individual mandate, but a lot of the decisions that have led up to this point. I guess that the Citizen’s united case gives me hope.

  14. If memory serves, Scalia was once asked whether an individual mandate would be constitutional or not. At first he declined to answer, and then he said that he wouldn’t be so fast to presume that the government can’t require you to buy something.

    That’s not a final answer, of course, but it doesn’t bode well. I do generally trust Scalia though – he seems like a smart guy with a great grasp of Constitutional structure.

    1. I wonder if that was when the idea of privatizing social security was hot. That would have required the citizenry to buy a finacial service.

  15. Does Damon Root think that the liberal judges’ alternative was actually more federalist? As though Ginsburg, Breyer, et al. are more likely to limit federal power…

  16. I don’t see the word interstate any where in the Constitution.

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