Supreme Court

Did John Roberts' Pro-Obamacare Ruling Encourage the Rise of Donald Trump?

Debating the influence of the conservative chief justice on the 2016 GOP race.

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Credit: WhiteHouse.gov

A lively debate has broken out in legal circles over what role, if any, Chief Justice John Roberts' 2012 decision upholding Obamacare played in the rise of Donald Trump. In a speech this week at the Heritage Foundation, and in a follow-up blog post at the Volokh Conspiracy, Georgetown University law professor Randy Barnett argues that "Chief Justice Roberts' decision to uphold the Affordable Care Act led to the demoralization of the popular constitutionalist movement that was the Tea Party, which in turn led to rise of Donald Trump in the Republican Party." Writing at The Federalist, Cato Institute legal scholar Ilya Shapiro makes a similar point: Roberts' "twistifications drove the constitutionalist Tea Partiers into the arms of the populists—or made it easy for their populist instincts to 'trump' their constitutional ones (pun unintended, but fitting)."

Writing in response to Barnett and Shapiro, George Washington University law professor Orin Kerr offers a different view. "To the extent public perceptions of Sebelius made any difference," Kerr writes, "the fault for the rise of Donald Trump does not belong with Chief Justice Roberts. Instead, it belongs with those who tried to delegitimize the Roberts opinion for their own ends and had it backfire on them big-time." In other words, Kerr maintains, those critics who attacked Roberts for writing a "dishonest" or "unprincipled" ruling deserve some blame of their own. By attacking Roberts in that particular fashion, this argument goes, those critics opened the floodgates, helping to create the toxic political environment that's now being exploited so successfully by Trump.

Both sides of this debate raise interesting points. It's not hard to imagine certain Tea Partiers becoming so disenchanted by the Supreme Court's actions that they lost faith in constitutionalism and instead became receptive to the strongman posturing (and constitutional illiteracy) of Donald Trump. We followed the Constitution and lost anyway, this line of thinking goes, so why not just elect somebody who'll start breaking the rules in our favor for a change? Or at least that's the general idea.

But Kerr also raises a valid point about certain conservative and libertarian responses to the Obamacare decision. You don't have to agree with Roberts' judgment (I don't) to be able to recognize that the chief justice was still acting in a principled fashion and was in fact sticking to a very specific set of conservative legal principles. Those principles go under the heading of judicial restraint or judicial deference. Here's how Roberts himself justified his decision to uphold Obamacare: "It is not our job to protect the people from the consequences of their political choices." Not only is that a textbook argument for judicial restraint, it's also a clear reference to the words of Progressive era Justice Oliver Wendell Holmes Jr., one of the Supreme Court's greatest and most influential advocates of judicial deference. "If my fellow citizens want to go to Hell I will help them," Holmes once declared of his judicial approach. "It's my job."

If you really want understood what happened in the 2012 Obamacare case, you first need to understand why a legal conservative like John Roberts felt comfortable invoking a Progressive legal hero like Oliver Wendell Holmes. What's the explanation? Here's the short version, excerpted from my recent book Overruled: The Long War for Control of the U.S. Supreme Court:

Judicial restraint, as Roberts well understood, was not only a touchstone of the Progressive left; it was also a philosophy adopted by many members of the modern right. Conservative icon Robert Bork, for example, the former Yale law professor and federal judge whose failed 1987 Supreme Court nomination had galvanized Republicans and set the stage for future judicial confirmation battles, was an outspoken proponent of granting Holmes-style deference to the elected branches of government. As Bork argued in his bestselling book The Tempting of America, the "first principle" of the U.S. system was not individual rights; it was majority rule, which meant that when it came to the vast preponderance of political disputes, the courts should simply butt out. "In wide areas of life," Bork wrote, "majorities are entitled to rule, if they wish, simply because they are majorities."…

That was the path taken by Roberts in the health care case. The only problem was that very few conservatives wanted to join him for the ride. Instead of seeking judicial deference, they wanted the justices to nullify President Obama's signature legislative achievement and overrule the elected branches of government—something the Supreme Court had not done since the great legal battles over Franklin Roosevelt's New Deal in the 1930s.

This was the other conservative path, the one Roberts refused to take. Like the Bork-Holmes approach, it too has its roots in the legal and political controversies of the late nineteenth and early twentieth centuries. Except this school of thought was not inspired by Holmes, but by the legal figures who opposed him: the conservative and libertarian judges and lawyers who rejected judicial deference and worked instead to strike down many of the laws imposed during the Progressive and New Deal eras.

(For much more on this longstanding clash of constitutional visions, please check out my book.)

Roberts' decision to uphold Obamacare thus clearly adhered to a particular set of legal principles. The problem is that those particular principles seek to elevate judicial deference to the will of the majority above the judicial duty to act as a check on the democratic branches of government, a perfect recipe for the Court's pro-Obamacare ruling.

NEXT: Trump, Sanders, and Clinton All Want a Minimum Wage Hike. Here's Why That's a Bad Idea.

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  1. Trump trump TRUMP, trump Trump Trump? Trump trump. Trump trump trumpety trump Trump. Trump trump.

    1. +1 Trump McTrumpface

    2. Only six more months of this to go.

      1. Unless the unthinkable happens and Trump wins the general. Then it’s 4.5 more years of this.

        1. When Hillary wins, instead we’ll four more years of happy talk about how wonderful everything is and how our “Libertarian Moment” continues on.

            1. Until that fateful day when she pushes the button and while the country burns, from her bunker she says ‘Ooops, So what difference, at this point, does it make?’.

              1. The bar to high office was never set that high to begin with, and after two terms of the community agitator it’s been lowered way down to cripple height, but can you imagine what that vile, corrupt, contemptible twat will “accomplish”? Folks will be wishing she pushes the fucker to end the misery..

                1. ….it’s been lowered way down to cripple height, ….

                  Well, FDR was in a wheelchair.

                  BTW, don’t discount the history of the court-packing fight for a reason why judges like Roberts follow Bork’s majoritarianism.

                  { And the site needs a better spellchecker. Red-underlining “majoritarianism” on a politics site? Really?}

                  Kevin R

                  1. So, wait, you sign your posts with your name, and think the site is spellchecking?

                    It isn’t 1993 guy. This isn’t usenet.

                    1. What’s wrong with USENET? Yeah, I know, but parts of it are still fun. The trolls are wackier, but there is something to be said about interacting outside of some Zuckeroidal playpen. As for the spellcheck, I was using a borrowed grandpa box, and the owner may have had that activatrd as a browser add-on. – Kevin R

          1. our “Libertarian Moment”

            If you define “libertarian” as the advancement of (positive) rights and the imposition of “equality” by law, then yes, the libertarian moment will continue on.

            We lost the “liberal” label to statists, and I’m beginning to think we are going to lose the “libertarian” label to them as well.

            1. Shrug. I guess we didn’t really do enough to deserve keeping it.

              What should our next name be?

              1. I am a proud yokeltarian.

              2. Freedomist. Freedomism will then immediately be “politically appropriated” by those who believe in my freedom to take your money, food, property, and freedom away from you!

              3. Doormat Party

                1. or, since may of the members are more interested in drug legalization than anything else, maybe the Weed and Feed Party

            2. If you define “libertarian” as the advancement of (positive) rights and the imposition of “equality” by law

              I’m confused. Are you referring to the long term existence of positive rights for Christians, or the more recent advancement of positive rights for homosexuals?

              We lost the “liberal” label to statists,

              True, just like we lost the “freedom” label to statist. Progressives and conservatives are both statists. Progressives, socialists, theocrats, and social conservatives all try to dress up their bullshit in the language of liberalism.

              1. As my father told me as a child, your rights end at the end of your neighbor’s nose. So, many of the current “gay”, “transexual” and other rights, are actually infringements of other peoples rights.

  2. By attacking Roberts in that particular fashion, this argument goes, those critics opened the floodgates, helping to create the toxic political environment that’s now being exploited so successfully by Trump.

    Really? It was the people who oppose OCare who created the toxic political environment?

    Yet another call for anyone who isn’t on TEAM PROGGY to unilaterally disarm.

    Only tangential, but this column by Richard Fernandez (Belmont Club) may be the best analysis of TEAM players I have read in quite some time:

    Against true imbecility even reasoning was useless since you couldn’t even appeal to your enemy’s self interest because they were too dumb to see it. “Against stupidity we are defenseless,” he wrote, because imbeciles never feel a qualm. Against the stupid “neither protests nor the use of force accomplish anything … reasons fall on deaf ears; facts that contradict … simply do not need to be believed … and when facts are irrefutable they are just pushed aside as inconsequential, as incidental. In all this, the stupid person, in contrast to the malicious one, is utterly self-satisfied and, being easily irritated, becomes dangerous by going on the attack.”

    http://pjmedia.com/richardfern…..d-be-king/

    He’s just warming up at that point. Worth a read.

    1. ^^ this, re: toxic poll env”

  3. Judges have a way of being very selective with their judicial restraint.

  4. The Trump train rolls on…

    1. TRUUUIUUMP

  5. “Chief Justice Roberts’ decision to uphold the Affordable Care Act led to the demoralization of the popular constitutionalist movement that was the Tea Party, which in turn led to rise of Donald Trump in the Republican Party.”…..Roberts’ “twistifications drove the constitutionalist Tea Partiers into the arms of the populists

    I don’t buy this in the slightest.

    The ‘constitutionalists’ in the Tea Party were pushed aside before the Affordable Care Act. By the time that policy was being argued in court that particular political movement had drifted away from any ‘limited govt’ principles and had become more of a catch-all for anyone ‘mad as hell’ about the failures of the GOP to do fuck-all about ‘anything’ in service to Conservative (not ‘constitutionalist’ or ‘limited govt’) voters.

    And the main thing those post-principled-Tea-Partiers were pissed about? Was Mexicans, not the ACA.

    Immigration is the unifying policy which has coagulated Trump voters, not ‘expansionist govt.’ and increased entitlements etc.

    Most Trump supporters are big-govt populists. Ex-Tea-Partiers are far more likely to be in the #NeverTrump camp from what i can tell.

    1. Also =

      Add “Syrian Immigrants” to the Mexicans.

      I think that particular kerfuffle in late 2015 had a significant role in boosting the people who were going to end up supporting Trump.

      The fact that the president was lecturing Americans how “opposition to refugees was ‘not what America was about”…at the same time there were massacres in Paris, mass-molestations in Germany, etc….

      …really congealed a lot of popular sentiment about what godawful pussies our leadership is.

      Trumps’ bluster about “I’D BAN ALL THE MUSLIMS!” was mocked in the media as Nazi-esque hysteria… but i imagine millions and millions of americans were nodding and going, “But Why the Fuck Not?” Yes, it was stupid, but it was simple and clear. He was the only person making simple statements that made 100% sense to the average person.

      Trump’s rise had absolutely nothing to do with weeny parsings by Supreme Court justices.

      1. I wouldn’t say nothing, I’d say it was more of an aggregation of frustrations. It probably wasn’t motivated by that decision, but it didn’t help either.

        Largely, it’s a realization that the “small, constitutional government” so beloved by conservatives and libertarians is a pipe dream. Even when conservatives are in power, they do little if anything to move towards that goal. Big intrusive government is a fact of life, and barring a revolution is likely to remain so for the lifetime of anyone here. The conservative base is merely making a realistic assessment of the options available to them under the circumstances.

        Also, there’s a growing perception the constitution is no longer sufficient to achieve it’s declared aims (i.e. ” secure the Blessings of Liberty to ourselves and our Posterity” yadda yadda). A pretty substantial number of the right are starting to find a preoccupation with the constitution as entirely missing the point, and worthy of mockery. I offer this as an example:

        http://www.traditionalright.co…..G_0491.jpg

        When you can address that, then you have an argument for the constitution. If not, don’t be surprised when appeals to the constitution fall on deaf ears, even those of the right.

        1. The conservative base is merely making a realistic assessment of the options available to them under the circumstances.

          No – and this is the same disagreement i’m making with Root and the people he’s summarizing.

          Trump supporters aren’t “The Conservative Base” that somehow ‘changed its mind’….

          Trump supporters are an entirely new “Base”, only a fraction of which were ever ‘ideologically conservative’. Most are pragmatic populists who never had any particular constitutionalist leanings to begin with.

          1. Really? You ought to visit some of the nationalist sites. You might be surprised at how many posters you recognize from Hit & Run.

            Although I’ll agree, there are a lot of young people with no prior political affiliation.

            Rather amusingly, for all the talk about millennials and the libertarian moment, the only political movements of primarily millennial origin are identitarianism, neoreaction and the alt-right.

            1. good for you.

            2. Really? You ought to visit some of the nationalist sites. You might be surprised at how many posters you recognize from Hit & Run.

              Ok, ok…yes, I am a regular commenter on the Nation of Islam boards.

              1. I could have sworn you were fairly prominent at Stormfront too. Must be that bi-racial privilege.

            3. I’m also not clear what anything you just said had to do with my point that “Trumpalos aren’t Conservatives”

              See = these two articles which compiled various survey/polling/demographic profiles.

              as the Times notes =

              His very best voters are self-identified Republicans who nonetheless are registered as Democrats. It’s a coalition that’s concentrated in the South, Appalachia and the industrial North

              While Cohn tries to glom everyone together as ‘racists’ (natch, you should be thrilled), its an argument unsupported by actual panel-profiles, as the other article provides

              Prior to Trump, people who would go on to back him in 2016 rated themselves much less conservative than the people who would go on to back Ted Cruz. The distinction was most pronounced on social issues: Future Trump supporters were almost as pro-choice as future Hillary Clinton supporters; they were also a little less opposed to same-sex marriage than future Cruz supporters. Yet they were more populist on economic issues as well: slightly more supportive of government spending in general, a bit less likely to favor repealing Obamacare, and far more hostile toward NAFTA

              IOW – ‘not conservative’

        2. The conservative base is merely making a realistic assessment of the options available to them under the circumstances.

          Indeed. They have seen control of Congress by nominal conservatives delivers nothing that they want. Ryan was the last in a long line of nails in that coffin.

          They have seen that SCOTUS will also deliver nothing that they want. Sebelius was the nail in that coffin.

          That leaves the Presidency as the sole source of political and legal leverage. While it was pretty apparent to many even before Obama, his administration has made it crystal clear to everyone that there is only one game in town – the Presidency, as our government has evolved into rule by strongman.

          1. ” the Presidency, as our government has evolved into rule by strongman.”

            The fascist moment.

  6. Look writers, nationalism is coming back in a big way, all through out the western world, and probably beyond. People have lost faith in the sort of globalist system we’ve had for so long, they’re sick of political parties that are in lockstep agreement on 90% of the issues they care about. They’re tired of putting global interests ahead of their own national interests.

    Here I’ll make a few predictions for you writers that you can read, so you don’t have to look silly writing anymore “omg how could this happen” articles.

    Trump will win the general election (and in the off chance that he fails, you going to another “Trump” in 8 years)

    The European Union is going to break apart, I don’t know exactly when, but it’s gone.

    You will at some point in the future see someone like Le Pen, if not Le Pen herself, become president of France.

    And after a nationalist becomes president of France, other European countries will start to follow.

    The rise of nationalism may start to fracture NATO, and you might start to see an America that embraces a less interventionist foreign policy.

    1. I think that libertarians are in agreement with the nationalists on a couple of issues. Speaking for myself only, I’m all for ending our military adventurism and making Europe and other allies pay for more of their own defense. What I’m not for is limiting trade, at all. As far as immigration goes, it’s a lot more complicated. We were once a pretty much open borders country, but we didn’t have massive entitlement programs either.

      1. The problem is on the immigration front, that too many people are ignorant. Data shows that immigrants move to states which spend less on entitlement programs. Which suggests they want to work. The hysterical shrieks from outlets like Breitbart seem to confirm this as a large number of new jobs have been taken by immigrants. They are, in effect, paying for an entitlement system that they cannot access. Which might be behind a lot of the support that this issue has among Progressives.

        The problem with nationalists is that they will destroy free trade. Always. It’s like the 1930s all over again. Between that and our strong-arming smaller nations, I suspect we’ll see an anti-American coalition arise pretty soon. We might always think we’re the good guys, but most of the rest of the world is coming to resent the American Empire.

        1. “They are, in effect, paying for an entitlement system that they cannot access. Which might be behind a lot of the support that this issue has among Progressives.”

          No. Progs have no idea this is true. They are merely virtue signaling.

    2. I expect you mean Marine Le Pen. her old man is dead.

      Kevin R

      1. MetalBard wrote “herself”, so presumably he was referring to a woman and I’m confused regarding your comment.

        1. He signs his posts.

          You can safely ignore everything someone who signs their posts thinks.

            1. Apparently, TDP’s eyes have never glazed over. Don’t pay him any mind. He usrs a joke nym. – Kevin R

    3. Globalism seems to be an excuse for top men to do whatever the fuck they want with no concern for any constituency.

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  8. I’ve made $64,000 so far this year working online and I’m a full time student. Im using an online business opportunity I heard about and I’ve made such great money. It’s really user friendly and I’m just so happy that I found out about it. Heres what I do,

    ============ http://www.richi8.com

  9. Bork wrote, “majorities are entitled to rule, if they wish, simply because they are majorities.”…

    That is some truly evil shit right there.

    1. Yeah, it’s like how the progs are so against majority rule, until they get rid of the evil majority patriarchy, then they want to rule with an iron fist. Your majority bad, my majority good.

      1. The progs are soon to be given a huge present when Hillary picks Warren to be the VP. I think she is going to go all in on the vagina ticket.

        1. It’s just vagina all the way down with intermittent cackling, coughing spells, and a dash of white squaw on the warpath.

        2. Warren would be an interesting pick. Not from a swing state, which breaks the mold. Terrible campaigner, which also breaks the mold. OTOH, Hillary and Warren are two peas in a pod when it comes to cronyism.

          With a Clinton-Warren ticket, we would be looking at a very odd ticket with limited regional appeal and zero charismatic horsepower. It would take a truly heroic effort by the DemOp Media to drag them across the finish line.

          On the plus side, we could have a whole new birther controversy about Warren’s claiming affirmative action privileges in direct contravention of the written standards*, and in defiance of all common sense (have you ever seen a whiter person?).

          *”All direct lineal descendants of the ancestor listed on the 1924 Baker Roll must have been living on August 14, 1963, possess at least 1/32 degree of Eastern Cherokee blood, [and] have applied for membership prior to August 14, 1963.” For those who applied after 1963, the standards went up to 1/16.

          http://www.motherjones.com/moj…..e-american

          There’s also a requirement that you be engaged with the minority community, which she clearly wasn’t.

          1. You make very good points, but I think the Hillbot is going to make a play for all those proggies that might stay home now that Bernie has been vanquished. I don’t see her picking the elderly socialist as the VP.I also think she will go all in on the woman card. Trumpster does terribly in that demographic especially with single women. Hilllary, barring some crazy event, will likely be the next Pres.

            1. The trap for Hillary in going balls to the wall with the Woman Card is that the Dems have a gender gap of their own: they generally lose the men’s vote. In 2012, Obama lost the men’s vote by 7 points, and Romney lost the women’s vote by 11 points.

              While Trump is alienating women, Hillary will be alienating men. Both gender gaps will probably be substantial this year.

              1. I think her downfall is having decided that she wants an all out war with Trump. She can’t possibly win that, she’s an idiot.

          2. With a Clinton-Warren ticket, we would be looking at a very odd ticket with limited regional appeal and zero charismatic horsepower. It would take a truly heroic effort by the DemOp Media to drag them across the finish line.

            I think you raise an interesting problem with the “Woman as Presidential candidate” thing

            the VP pick.

            If she picks either a male who’s seen as weak/deferential/symbolic… or one who has extensive experience governing, is a strong candidate in their own right… it presents an odd sales pitch both ways.

            I’m really struggling to avoid anything that sounds like it has sexual dominance/submission overtones… but the issue of “Who is on top” is a serious one.

            Both present some problems on how its perceived.

            On the other hand if she goes with another Female…. i think it actually avoids some of that whole mess, BUT puts a lot of voters in a position wondering if a Matriarchy is really all that great an idea when it comes to Governance.

            I suspect that the pick will end up being someone like Julian Castro, who sells people on the idea of another “first”; or maybe Wesley Clark… which provides some reassurance on the national security front, and the uniform suggests that he’s OK playing the “subserviant to power” role.

            1. Bernie could be a scary VP pick.

              1. not in a million years.

            2. Her handlers know she is weak with millennials. That will be the target audience. Someone perceived as attractive to millennials to get the Bernie voters to vote.

  10. Only One? Insufficient Ilyas.

  11. You don’t have to agree with Roberts’ judgment (I don’t) to be able to recognize that the chief justice was still acting in a principled fashion and was in fact sticking to a very specific set of conservative legal principles. Those principles go under the heading of judicial restraint or judicial deference. Here’s how Roberts himself justified his decision to uphold Obamacare: “It is not our job to protect the people from the consequences of their political choices.”

    I just don’t understand how you can call Robert’s judgement “principled,” Damon. Robert’s claim that Obamacare was “the consequences of their political choices” is just outrageously stupid. The American voters did not vote for this monstrosity. Yes, they did put the democrats in power, but only one district put Pelosi in power and only one state foisted Reid upon us. Obama was, of course, elected by the electoral college according to the wishes (kinda) of the popular vote, but that does not equate with the citizens choosing Obamacare. In fact, Robert’s duty is just the opposite of what he claims in his stupid excuse. The court’s job is to protect us from unconstitutional laws–Judicial Restraint or no.

    1. It sort of seemed to me that Roberts both:

      a. Seemed to be making the argument that it’s not the duty of SCOTUS to stop congress from doing just whatever they want to do, constitutional or not.

      b. Had to sort of rewrite the ACA to mean that the penalty is a tax, not a penalty, when the law and the Obama admin had said it’s not a tax, but a penalty. AKA the penaltax.

    2. the chief justice was still acting in a principled fashion and was in fact sticking to a very specific set of conservative legal principles. Those principles go under the heading of judicial restraint or judicial deference.

      I don’t think this is true at all.

      He stepped WAY out of his so-called ‘deference’ in his decision… by inventing an argument which no one had ever made in favor of the ACA. The Govt had argued that the mandate was *not* a tax.

      When a justice decides that plaintiffs in a case didn’t use the “Correct” argument… and then makes one up *on their behalf*, entirely out of nothing, and inserts it into his ruling in their favor? That’s a blatant violation of the so-called ‘conservative legal principles’ he claimed were guiding him.

      yes, the *result* he argued for could be defended on conservative principles. But he only got to that argument by exercising extraordinary and extra-legal authority which was a complete reversal of his own claims of ‘judicial deference’.

    3. Small sample, but I don’t know a single lawyer who thinks Roberts opinion was worth a crap. A very smart lawyer who supported OCare and thought it shouldn’t be overturned called his opinion “intellectually dishonest”. And it was. Which is why its not a principled opinion.

      Aside from the argument about whether the Court should overturn legislation (and its hard to read Roberts’ opinion as “principled” without concluding that the answer is “no” – principles apply generally, and his extreme version of judicial deference would take the Court out of the overturning business), there is this little do-si-do:

      The legislature which he deferred to went to great lengths to impose a “penalty”, both on its face and in innumerable statements, etc. They were crystal clear that it was a penalty, meaning its Constitutional foundation was in the Commerce Clause, not the Tax Clause. It could only get through Congress as a penalty, not a tax.

      But, as an exercise of Commerce Clause power, Roberts would have overturned it. It could only get through SCOTUS as a tax, not a penalty.

      What’s principled about simultaneously deferring to Congress and ignoring what Congress said and did? What’s principled about going on at great length about judicial deference, and then rewriting legislation from the bench?

      Intellectually dishonest and unprincipled.

      1. Uhhhhh. Only results matter, and process can go to h-e-double-hockey sticks?

        (Except when proggies and socialists are bitching about process. Then we have to make sure every T is dotted and every I is crossed)

        Kevin R

      2. I don’t have a problem with SCOTUS ignoring how Congress describes something. If Congress said that $1 is just compensation for taking a house using eminent domain, I would hope SCOTUS would call B.S. What I have a problem with is Roberts having it both ways. He and the majority said it is a tax to determine the constitutionality of its imposition, but for purposes of the Anti Injunction Act (was it too soon to litigate?) it isn’t a tax. Why? Because Congress said it wasn’t a tax! So Roberts made up from whole cloth the notion that for constitutional tests you ignore what Congress says and for the Anti Injunction Act you take what Congress says at face value.

    4. And consider that for purposes of the penalty Roberts and the majority said it is a tax, but for purposes of the Anti Injunction Act it isn’t a tax. If it was a tax for the latter purpose a lawsuit couldn’t be brought until the taxes had been collected. How can it not be a tax for that purpose? Why, Congress said it wasn’t a tax! So Roberts made up from whole cloth the notion that for constitutional tests you ignore what Congress says and for the Anti Injunction Act you take what Congress says at face value. Yes Damon, quite a principled approach. Then there’s the issue of why Roberts argued the penalty is a tax: the amount is not so much that people will be forced to pay it. On what did he base that? His opinion. But the law was specifically designed by Congress to force most everyone to buy insurance – it wouldn’t work otherwise due to adverse selection – but Roberts argued that the penalty wouldn’t force people to participate. Where’s the judicial restraint there? It’s clear that there were no principles behind the decision. Roberts wanted the law to stand and he fit each argument to get that result.

  12. When I gave a presentation on Sebelius, I used this as one of my slides:

    http://www.someecards.com/frie…..a-man-date

  13. Stop it. Please. I’m begging you. Yeah, it’s everyone else’s fault but the GOP and its electorate.

    I’d expect nothing else fro Republican apologists.

    1. Joe! How’s your miserable life going? Terrible?

    2. Not really sure what the GOP could’ve done significantly different. There aren’t any leaders left within it to change much of anything about the status quo.

      To be fair, the Democrats also lack leaders. But as a dominant party they only need warm bodies to keep filling seats of power indefinitely, so it hardly matters.

    3. It would help so much if you would learn to read

  14. Look, we all know that humans are what they are. Why are we so surprised to see that the 30s are happening again? Enjoy the farce, and if you find yourself in a camp, enjoy that too. Time is a flat circle.

    1. If you don’t want to see the 30s again, it helps if you don’t keep recreating the circumstances that led to them in the first place.

      1. Well, don’t stop there. Finish your thought.

  15. At least we didn’t wind up with Bork, but got Thomas.

  16. “Here’s how Roberts himself justified his decision to uphold Obamacare: “It is not our job to protect the people from the consequences of their political choices.””

    His remark was phenomenally stupid, and stupid in a progressive, not a conservative, direction.

    The case was about the division of power between the federal government and the states in making health-care policy.

    The Supremes awarded the victory to the federal government, allowing the feds to force people to buy health insurance.

    If the dissenters had won, the result would have been that only the states, not the feds, could force people to buy insurance.

    So the dissenters could just as well say it’s not *their* job to protect the people of the states from the consequences of their choice not to compel insurance purchases under state law.

    But under progressive dogma, “the people” means 50% + 1 of the population of the country. And Roberts swallowed that dogma.

    Maybe he wasn’t being dishonest, but if so it was only because he was dumb.

    1. “His remark was phenomenally stupid”

      Not to mention total bullshit. We are a Rebublic, not a Democracy.

      1. Yes, a Rebublic.

        Of the Bubbas,

        For the Bubbas,

        By the Bubbas.

        Hillary is a Bubba by marriage. Not a real Bubbette, but close enough for gubbmint work.

        Kevin R

        1. this is bs

          this is bs at its core

          in a republic, one thinks of the greater good: what is good for the nation

          a democracy is the lowest form: me me me

          stupid people doing stupid things, voting for stupid things

          roberts is a coward, looking to please the masses, not doing his job

          judicial restrain is a fool’s errand. stand proud or go home judges! at least a ginsberg believes in her vote. does roberts?

    2. Agreed he is a coward. When the Republic needed someone to stand up he bent over.

    3. But under progressive dogma, “the people” means 50% + 1 of the population of the country. And Roberts swallowed that dogma.

      AFAIK, ACA has never had majority approval in its entire history. Obama also never was voted for by a majority of the population or even voters (no president ever is), and even his approval ratings were below 50% when ACA was passed.

  17. It’s a progressive notion that “judicial deference” means deferring to the feds at the expense of the states. The states have elected governments, too, you know.

    Yet state governments never seem to get deference from the “judicial restraint” shriekers.

  18. It’s a progressive notion that “judicial deference” means deferring to the feds at the expense of the states. The states have elected governments, too, you know.

    Yet state governments never seem to get deference from the “judicial restraint” shriekers.

    1. Yes, it’s pretty clear that they have zero respect for any notion of Federalism.

      1. They’re stealing a base – you see, when the federal courts side with the federal government against the states, they’re not promoting a nationalist ideology, they’re just being disinterested, uninvolved judicial-deferrers!

        1. And ignore the fact that the federal courts are a branch of the federal government – no, they’re neutral umpires.

      2. They will happily support any increase of statism at the state and/or local level. They had no problem with Vermont’s single-payer system, until it became clear to even its supporters that it was unaffordable.

        Kevin R

  19. Does anyone think the voters are dissecting Supreme Court ideologies to decide their preferred candidate? They might consider the decisions themselves but weren’t most gop candidates against Obamacare? Trump’s stance on immigration is why he is doing well.

  20. And while discussing Kerr’s weird thesis, here’s a similar notion which a Democratic relative shared with me:

    You see, the Republicans set the stage for the rise of Trump by being so mean to Obama! The proof was a photo of Trump and Obama, and some snarky text which had been printed on the photo.

  21. “By attacking Roberts in that particular fashion, this argument goes, those critics opened the floodgates, helping to create the toxic political environment that’s now being exploited so successfully by Trump.”

    Hey Orin, talk about living in a bubble, geez.

    Get a load of this guy who missed the hordes screaming at the top of their lungs the minute Roberts betrayed his country, his party, and his oath. Even the stupidest yokels could see right through the ‘penaltax’ ruling. But Orin here thinks the rubes were only outraged because they were told to be.

    Typical elitist dunce. I have seen it right here on these threads; spout stupidity and then tell twenty people with an iq 20-50 points higher that the only reason they disagree is because he is smarter than all the dissenters combined. Uh huh.

    Go fuck yourself Orin.

  22. “To the extent public perceptions of Sebelius made any difference,” Kerr writes, “the fault for the rise of Donald Trump does not belong with Chief Justice Roberts. Instead, it belongs with those who tried to delegitimize the Roberts opinion for their own ends and had it backfire on them big-time.”

    The Tea Party rose up outside and in opposition to TARP. Opposition to ObamaCare sustained the Tea Party and is ultimately what brought it into the GOP fold.

    I concur that if ObamaCare had ceased to be an issue after the Supreme Court, then the Tea Party leadership in Congress would have been seen as the next step forward–and the Tea Party leadership would have cemented their place as the new establishment.

    This is how republics fail. People stop believing the courts will protect their rights, they lose faith in Congress to do their will, and so they invest themselves in a strong man executive. The Supreme Court’s failure to protect our rights against ObamaCare wasn’t the only reason why Trump became such a force, but it was certainly a contributing factor.

    If both Congress and the Court fails to protect our rights, why wouldn’t the country fall for a strong man?

    The punchline to that joke, of course, is that the strong man hardly ever does what his original supporters thought he would do. Gaddafi and Castro were once seen as liberators.

    1. “The Tea Party rose up outside and in opposition to [the Republican Party because of] TARP.”

      Fixed!

  23. Kerr writes, “the fault for the rise of Donald Trump does not belong with Chief Justice Roberts. Instead, it belongs with those who tried to delegitimize the Roberts opinion for their own ends and had it backfire on them big-time.”

    Wow. I don’t think a $2,000.00/hour Las Vegas hooker could suck Robert’s cock any better

    1. Yeah, I’m sure the average Trump-voter is just balls-deep in complex and highly technical legal opinions. Or they read other peoples’s analyses of same, and it got ’em all fired up and.

      Either side of that hypothesis is fucking moronic. Trump initially appealed to people who thought the shit he was spouting about illegal immigrants was awesome to hear. I’m sure lots of them dislike Obamacare, but not because they understand anything about what Roberts did.

      Oh, and fuck Roberts, by the way.

  24. Damon, calling the ruling judicial restraint is just astonishingly wrong. Roberts rewrote the law and invented an argument that wasn’t even presented. That’s the definition of activist.

    1. Just because Roberts was wrong to see it that way doesn’t mean that’s not the way he saw it.

      1. It isa werd defining of judicial restraint that allows a jurist to rewrite the law in order to make it work. It pretty much breaks any principled definition of the term. The only way it fits is if the executive gets what it wants, always.

      2. It’s still not judicial restraint. It was dishonest, and it was unprincipled, and Kerr and Root are completely wrong.

        1. I don’t understand why it isn’t judicial restraint.

          He restrained himself from overruling Congress.

          If that isn’t judicial restraint, what is?

          You might argue that what the ACA did was clearly unconstitutional, and so he shouldn’t have restrained his own power, but he clearly restrained his own power.

          That is judicial restraint. It’s just that this case didn’t call for judicial restraint.

          1. Agreed. It was judicial restraint. But one totally lacking in principles to justify the restraint. That’s where Damon is wrong.

  25. Which just goes to show that if you take the homo-eroticism out of that movie, that its unbelievably boring.

    1. 300, that is

  26. Damon Root | 5.07.2016 @ 12:09 pm
    .
    Did John Roberts’ Pro-Obamacare Ruling Encourage the Rise of Donald Trump?
    – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

    The Republicans on Capitol Hill (especially in the Senate) and the RNC have more to do with “the Rise of Donald Trump”, than Chief Justice John Roberts . . . . . not that Robert’s pro-Obamacare ruling helped any.

  27. “The problem is that those particular principles seek to elevate judicial deference to the will of the majority above the judicial duty to act as a check on the democratic branches of government,…”

    It is not even that. It is deference to the policy result the executive wants by trashing what the legislature wrought. In both major Obamacare cases Roberts corrected Congress’ problematic language in order to get the policy the administration wanted. Roberts has undercut the Congress’ power to make law by allowing the executive branch to get away with not merely creatively interpreting the law but actively rewriting it. Roberts granted the executive branch dictatorial powers, if anything the voters are just recognizing that fact.

  28. (pun unintended, but fitting)

    Foreseeable puns are not unintended.

  29. No.

    This is just another example of people in the legal profession vastly over-estimating their influence.

  30. So the fact that Obama and the Democratically controlled Congress of the time used slight-of-hand maneuvers to get Obamacare passed means that so long as a law is passed, it’s legal? Sorry but that is incorrect. Reason may overthrow the law but the law must never overthrow reason. Chief Justice Roberts failed in his duty to nullify any act of Congress or the President by allowing that abomination to stand. The whole point of the Constitution is to protect the rights of the individual. That is why it needed the Bill of Rights, which was supposed to do that very thing, in order to pass.

    Robert Bork was incorrect in his assumption that majorities must rule. A majority ruled when the Nuremberg laws were passed. Or at least a majority didn’t dissent from such disasters of jurisprudence. The same could be said of the “laws” passed by the Soviet Union, or any other autocratic nightmare.

  31. When it comes to the Constitution everyone demands an activist court until it’s their pet issue that’s on the chopping block.

    1. Isn’t that the whole point of the courts under a libertarian constitution? to restrain a popularly elected legislature?

      the 99% be damned! this is about right and wrong! there is no authority under the Constitution for Congress to mandate any sort of commercial activity

      1. True, although the Constitution gives Congress the power to tax. No one can go to jail if they don’t buy insurance, they pay a “fee” which we know is a tax. In any other case libertarians will be arguing that a tax by any other name is still a tax but that cuts both ways.

        We shouldn’t pretend it says something it doesn’t because that same activism can be used to interpret in powers that aren’t there.

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  34. We followed the Constitution and lost anyway, this line of thinking goes, so why not just elect somebody who’ll start breaking the rules in our favor for a change?

    As a single data point, recent Supreme Court rulings were another brick in the wall in my conclusion that the constitution and the rule of law are dead. Charles Murray’s recent book laying out the last 100 years of history of the Supremes overthrowing the constitutional order had a lot of bricks.

    Between Obamacare and “Look, I see gay marriage in the Constitution”, the pattern was plain in a short period of months. “We’re gonna make shit up, and the peasants will take it and like it.”

    That’s actually the policy of the Progressive Theocracy. Rulers rule, and the peasants take it and like it. Republicans, meanwhile, have been playing the “let’s play by the rules” game.

    Rule of Law is great. I would love to live in a country where our Constitution actually applied, and the Rule of Law was upheld. There is no such country. The Constitution was overthrown by the Supremes in slow motion fashion over a period of decades.

    And the Republicans, by playing the “let’s follow the rules, while the other side cheats”, were cucking themselves. The Right plays by the rules, the Left cheats whenever it can get away with it. Structural advantage to the left, explaining the ever increasing and encroaching power of government.

    A one way cease fire is surrender.
    A one way rule of law is subjection.

    1. As long as the Left can get away with arbitrary power, with no *consequences*, with the Right still resolutely playing by the rules that the Left broke, why would the Left ever stop?

      It’s a fantastic deal. You try to mug your enemy, day after day. Sometimes he manages to hold onto his wallet. Sometimes he doesn’t. But he never fights back to make you *pay a price* for the attempted mugging. Why would you every stop mugging him?

      It’s time for the Right to fight back. The Rule of Law has failed long ago. Now there is Power. Fight for it to *impose* a freeish government on your neighbors who wish to enslave you, or let them enslave you. Those are the options.

      Maybe someday, if the Right is successful, the Left will start to see the value in the Rule of Law. In a government of laws, and not men. But that day is far away, and may never come.

      Until then, fight against the thugs, and fight to win.

      1. “Maybe someday, if the Right is successful, the Left will start to see the value in the Rule of Law. In a government of laws, and not men. But that day is far away, and may never come.”

        Jan 20, 2017 if Trump wins.

  35. “If my fellow citizens want to go to Hell I will help them,” Holmes once declared of his judicial approach. “It’s my job.”

    Prick. Your job was to enforce the Constitution and the Rule of Law, not just rubber stamp whatever our rulers willed.

    Instead of seeking judicial deference, they wanted the justices to nullify President Obama’s signature legislative achievement and overrule the elected branches of government

    Bullshit. People like me wanted them to *apply the law*, as crappy as it was. Follow the rules. Roberts went beyond deference to the *law* passed by Congress, to deference to the *men* of government, picked by them.

    The Rule of Law is dead. They Rule of Men is here. Time to *fight back*.

  36. Roberts’ decision to uphold Obamacare thus clearly adhered to a particular set of legal principles. The problem is that those particular principles seek to elevate judicial deference to the will of the majority above the judicial duty to act as a check on the democratic branches of government, a perfect recipe for the Court’s pro-Obamacare ruling.

    Wrong. To adhere to principles would have been to apply the law as written, not rewrite it as he hallucinated they must have meant it.

  37. Hows about we blame Trump for Trump, just like we blame Bernie Sanders for being Bernie Sanders.

    1. Sure, if you don’t understand context.

      In context, when we’re blaming [insert group of choice here] for Trump, we aren’t blaming them for Trump being the way he is. We’re blaming them for Trump winning the GOP nomination.

      There’s no one to blame for Sanders winnings the Democrat nomination, because he hasn’t won it and it seems unlikely he will.

  38. “You don’t have to agree with Roberts’ judgment (I don’t) to be able to recognize that the chief justice was still acting in a principled fashion and was in fact sticking to a very specific set of conservative legal principles. Those principles go under the heading of judicial restraint or judicial deference.”

    Deference is one thing, but English-contorting, common-sense-lacking, bend-over-backward verbal and semantic gymnastics toward the end of leaving unconstitutional legislation in place is quite another. Roberts’ seems to view his job as finding any way he can to square misbegotten law with existing law and the Constitution — even ways that the legislators rejected or never even considered. To him, the Court is not one of the many checks and balances that were included in the Federal plan by design, but rather an apologist for the other two branches of government, whenever that is at all possible. That is just as bad as “legislating from the bench.”

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  42. You don’t have to agree with Roberts’ judgment (I don’t) to be able to recognize that the chief justice was still acting in a principled fashion and was in fact sticking to a very specific set of conservative legal principles. Those principles go under the heading of judicial restraint or judicial deference.

    Well, yes: the idea that SCOTUS should let a badly written and inconsistent law stand because Congress intended to violate the Constitution apparently is a conservative principle. And that is probably one reason why voters are frustrated and pissed off, and why establishment conservative candidates have had such a hard time.

    Following bad principles consistently is no more endearing to voters than following bad principles inconsistently. You do not get political points for being a consistent fool.

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  44. This is how republics fail. People stop believing the courts will protect their rights

    King vs Burwell is an outright contradiction. You can gussy up this pile of shit in whatever legal bukakke you want, but the court rules States = not States

    In City of Castle Rock vs. Gonzales, we are told that not only is the court not going to protect out rights, they aren’t even going to protect the very individual individual.

    . A court that rules in contradictions, a court that does not protect the bodily integrity of human being. The opinions of such a court are no longer legitimate and should be treated as such.

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  46. It seems appropriate to compare Obamacare to Franklin Roosevelt’s New Deal. Both are a disgrace.

  47. The concept of judicial restraint makes absolutely no fucking sense to me. Striking down popular, but unconstitutional laws is literally their job.

    1. But this law wasn’t even popular. The court sided with the government over the people and then claimed to uphold the people’s choices in government. It’s all a ruse.

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  49. “You don’t have to agree with Roberts’ judgment (I don’t) to be able to recognize that the chief justice was still acting in a principled fashion and was in fact sticking to a very specific set of conservative legal principles. Those principles go under the heading of judicial restraint or judicial deference.”

    So what was the excuse for the other four justices of the majority opinion?

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  57. Romney is the one that ran on an anti-ACA platform. Trump has barely said a word about healthcare, and as usual for him, has been pretty inconsistent on the topic.

    So this analysis seems a bit off.

  58. “It is not our job to protect the people from the consequences of their political choices”. If this were a valid argument, it would essentially overrule EVERY Supreme Court decision that ever ruled a law unconstitutional. There is literally NO LAW that you could not defend with this argument. Congress bans public speech? Public Assembly? Hey, it’s not our job to protect the people from this.

    This was a pathetic attempt by a pathetic “justice” to avoid doing his job. As soon as the author defended this as “judicial restraint”, there was no reason to finish the article.

  59. RE: Did John Roberts’ Pro-Obamacare Ruling Encourage the Rise of Donald Trump?

    No, Robert’s decision in the Obamacare case did not encourage Trump the Grump to run for president.
    Trump’s monumental ego encouraged him to run for president.

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