Supreme Court

No, Chief Justice John Roberts Is Not a 'Secret Liberal'

The chief justice is a legal conservative who sometimes practices judicial deference.

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WhiteHouse.gov

"Is Chief Justice John Roberts a secret liberal?" asks the provocative headline attached to an article at FiveThirtyEight. Spoiler alert: The article is dumb and the answer is "no."

According to FiveThirtyEight's Oliver Roeder, while it is "relatively early in Roberts's Supreme Court career…he is beginning to fit the historical pattern, at least quantitatively, of an ideological defector."

What's the evidence of this alleged defection? Here is a representative sample of Roeder's argument:

The case for a liberal John Roberts starts with his 2012 decision that determined the fate of the Affordable Care Act. The chief justice was widely expected to vote to kill the law—the crown jewel of the Democratic president whom he'd sworn into office three years earlier. Instead, he performed some contorted judicial yoga, declaring that the law's individual mandate was a constitutionally allowed tax, siding with the liberal bloc and saving Obamacare.

You may have noticed that Roeder makes a foundational error at the outset. He confuses the outcome of a case with the legal reasoning that led to that outcome. The problems only grow from there.

In a manner of speaking, yes, National Federation of Independent Business v. Sebelius does count as a "liberal" win, because the liberal Obama administration won. But why did the liberal side win? What did the Court actually say in its decision?

Before I get into that, let me go back to Roeder's assertion that "the chief justice was widely expected to vote to kill the [health care] law."

Not everyone back then was so sure that Roberts would "kill the law." Seven months before the Supreme Court heard oral arguments in the Obamacare case, I wrote the following: "Roberts may very well uphold the health care law as an act of judicial restraint."

I wrote that because it seemed to me that Roberts came from the school of legal conservatism that puts serious stock in the doctrine of judicial restraint, or judicial deference—the idea that judges should defer to the democratic branches of government whenever possible, nullifying duly enacted laws on only the rarest of occasions. As the conservative legal icon Robert Bork liked to put it, "let the majority have its way." It also seemed to me that this deferential doctrine was going to play an important role in the looming SCOTUS showdown over heath care and that Roberts would be the one to watch on that front.

So why did the liberal side win the case? Or, more accurately, why did the conservative chief justice vote to uphold the health care law?

Here is what Roberts had to say for himself: "It is not our job to protect the people from the consequences of their political choices." In short: Roberts made the familiar argument for judicial deference.

As it happens, Roberts did the same thing in 2015 when he urged judicial deference to Congress in the follow-up Obamacare case King v. Burwell ("in every case we must respect the role of the legislature"). Roberts did it again in 2015, when he urged judicial deference to state legislatures in the gay marriage case Obergefell v. Hodges ("this Court is not a legislature"). In the Obamacare case, judicial deference meant that the "liberals" won. With gay marriage, judicial deference would have meant a win for the "conservative" side. Once again, the outcome of a case is one thing; the legal reasoning behind it is something else.

To summarize, Chief Justice Roberts is not an "ideological defector." He is a legal conservative who has a habit of invoking judicial deference, which is an idea that he and many other legal conservatives have been championing for years. There is nothing "secret" about this.

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  1. Good article. Kind of highlights the silliness of judicial deference.

    Roberts gets knocked for upholding Obamacare, but he did prevent even further expansion of the commerce clause. Due to the fact that he found the individual mandate to be a ‘tax’ rather than Congress exercising its authority under the commerce clause, it seems like his ruling was slightly less terrible than it could have been.

    1. Roberts has expanded the commerce clause on numerous occasions. Roberts is not a strict reader of the Constitution, nor a fan of its limitations on government.

      Roberts would have gutted any lefty hope for socialized healthcare if he had sided to strike down the law as unconstitutional.

      Even in Heller, Roberts did not push the correct reading of the 2nd Amendment- that there is no gun law that should survive review, under the standard infringement prohibition of the 2nd.

    2. That may be true, but he rescued it based on a rationale no one in court was arguing for, as the Obama administration was leery of arguing that it had broke its promise if not raising taxes on the lower and middle classes. Subsequent cases rescued the Democrats from facing the consequences of their overcleverness. So his rationalizing about why he does such things does not even stand up from case to case.

      1. Neither Congress nor the lawyers who defended Obamacare ever claimed the mandate was a tax. Roberts pulled that idea right out of his ass. I am unaware of another instance where a judge sue esponte created a justification and characterization of a law that was never embraced or even suggested by either party before the court. That decision is one of the worst cases of results based jurisprudence in the entire history of the Court.

        1. As I recall, the notion that the penalty was actually a tax was percolating around left leaning punditicracy as a novel way of saving it, but that was not a source Roberts should have been listening to.

          1. Rightwingers also shouldn’t have been wishing to eliminate healthcare access to millions of people and thus condemning millions of people to preventable maladies and early death just because they didn’t like that the president was a Democrat, but what are you gonna do.

            1. Tony you are an illiterate fucking moron. For God’s sake let the adults talk. You are just dumb as a fucking post and can’t even argue your own side.

              1. Obamacare originated as a right-wing conservative free-market program as you well know.

                Do you acknowledge that your people no longer believe that civilized society should try to expand access to healthcare to all citizens? Do you also acknowledge that this is the case either because at some point you turned ideological purity on auto-pilot until you got to cuckoo land, or because your ideology is simply and solely to oppose anything Democrats do?

                1. WAAAAAA Tony is butt hurt and can’t verbalize why.

                2. I remember the Heritage Foundation paper, which was a lot more limited in scope than the ACA monstrosity became and I found the mandates offensive to liberty then. I do not have to accept a harebrained idea just because a rightwing thinktank proposed it.

                3. Tony|11.29.17 @ 3:33PM|#
                  “Obamacare originated as a right-wing conservative free-market program as you well know.”

                  You are certainly as stupid as John states, but you are a lying sack of shit besides:
                  “Perhaps it would help to present the comparison in graph form. Here, first, is an exhaustive list of the similarities between the plans:
                  Heritage Plan: Requirement to carry insurance
                  O-care Plan: Requirement to carry insurance”
                  http://www.lawyersgunsmoneyblo…..chart-form

                  So much for your new pile of bullshit, you idiot.

            2. The ACA did not change anyone’s access to health care. It did make making economic choices that busybody progressives do not like illegal and grant the executive powers that a government of a free and responsible people should not possess.

            3. Tony you are an illiterate fucking moron. For God’s sake let the adults talk. You are just dumb as a fucking post and can’t even argue your own side.

              C’mon John, at least a post knows better than to talk about things it doesn’t understand. Tony on the other hand…

            4. Which of course we aren’t. We wishing to eliminate health insurance protection, and in fact the only ones who are “wishing to eliminate healthcare access to millions of people and thus condemning millions of people to preventable maladies and early death” are the supporters of Obamacare, which has made access much more expensive.

            5. There’s only one we wish to see condemned to preventable maladies and early death.
              Want to know who that is?
              Got a mirror?

            6. Health care and health “insurance” are two different things. (Scare quotes because health “insurance” has come to mean something completely different from concept of “insurance” in any other context.) There’s no way to have an intelligent debate as long as people keep conflating them. Since the “Affordable Care Act” did little or nothing to make actual care more affordable, it’s entirely possible to oppose it for reasons other than hatred for the poor or rank partisanship.

          2. It was never mentioned in the briefs. And Congress specifically said that it wasn’t a tax, because if it had been, they could not have used the reconciliation process to pass it. If it was a tax as Roberts claims, then it was passed illegally and contrary to the Congress’ rules. Also, the final version of the bill was the Senate version. This was done because after Scott Brown won the special election for Kennedy’s seat there was no way to pass the House version through the Senate. All revenue bills are supposed to originate in the House. If the mandate was a tax, the bill should have been declared void because it did not originate in the House as required by the Constitution.

            And on top of that, Roberts voted to kill off the Medicaid expansion which was by any objective measure an essential part of the bill. Courts are supposed to nullify all of a law when an essential part of it is nullified. Roberts was alone on the court in holding this position. Both sides agreed that striking down the Medicaid expansion required striking down the entire law. Roberts just ignored that and voted with the conservatives to strike it down but with the liberals to uphold the law. The entire decision was disgraceful.

            1. Disgraceful because you didn’t get to punch the black man in the balls like you and your friends on the neo-Nazi internet so wanted.

              Or do you actually want to take healthcare access away from people? Which form of dick are you today?

              1. Did you forget your meds today? you are normally just angry and stupid. But you seem to be shreek level deranged. Has Trump finally broken you? Do you need help?

                1. I care too much. It’s my worst flaw. And your political cohort is literally destroying the planet when it’s not endorsing child molesters to make laws that will affect me. Pardon my rudeness all over the place.

                  1. Your worst flaw is that you are narrow-minded and profoundly ignorant. As much fun as people make of you, I do not think you are necessarily stupid. Your problem is that you are so narrow-minded and have fallen into the trap of seeing your self-worth as being defined by your politics, that you are incapable of seeing reality as it is. Your self-esteem and your politics dictate that you be profoundly ignorant and hateful. It seems to be a vicious cycle that you are unable to escape.

                  2. I care too much. It’s my worst flaw.

                    You’re hired!

              2. I’m not sure I get it. Are you saying that if Obama had been a white man, Republicans would have had no problems at all with passing the ACA? Or is this just a cheap rhetorical trick to avoid discussing the constitutionality?

                Also, I’m pretty sure most people would like everyone to have access to health care if it were possible to have it that way with no drawbacks. You are severely simplifying the whole idea of healthcare if you think that the ACA fixes all the problems with the healthcare system or even fixes more than it breaks.

                You have contributed nothing to this discussion other than rhetorical jab talking points that have no bearing on reality or even the discussion at hand. Try discussing the law and constitution on its merits and quit flying right in with the character attacks and race-baiting.

                1. I think that it’s verifiably true that Obamacare originated as a free-market alternative proposal to single-payer or somesuch, back when everyone in politics agreed that universal healthcare was a necessary and laudable goal. And it’s plain that the Republican party stopped caring about policy altogether (except its precious tax cuts) at some point and simply became a reactionary party opposed to anything Democrats do.

                  So as to the constitutionality of the law. Well, it’s constitutional if the Supreme Court says it is, which it did. So that’s settled. I don’t think the law is perfect (as I am not a free-marketeer as those were who originated the law). If it has constitutional problems then I’m all for designing a law that doesn’t. If the constitution doesn’t permit any national healthcare scheme, then it’s the constitution that’s flawed. But that’s my political worldview. I’d rather bend the constitution at its vague parts (commerce clause, etc.) in order to permit good law than strictly adhere to some other theory that forbids it.

                  1. “Well, it’s constitutional if the Supreme Court says it is, which it did.”

                    So, PB is a rape apologist and Tony is a supporter of Dred Scott, Kelo, Korematsu v US, Buck v Bell, etc. Weird times, man.

                  2. Do you think that the ACA is good law? You would prefer single payer? I feel there are way too many drawbacks with single payer, (rationing, expenses, social cost of everyone being on the hook for everyone else’s bad decisions) do you acknowledge the fact that it wouldn’t be the same as the system we have, just everything is free?

                  3. Tony, you are mistaken if you sincerely believe there was a time when everyone believed in Single Payer.

                    I have some questions to ask you.

                    First, why are monopolies like AT&T, Micro$oft, etc, so evil?

                    (Hint: the more monopolistic a private company is, the more it acts like a government bureaucracy.)

                    Second, what’s so magical about health care, such that once it becomes a government monopoly, everything will suddenly become sunshine and roses?

                    (Hint: There’s no magic. The laws of Economics applies just as much to health care, as it does to any other human endeavor.)

                    Third, if Single Payer really is the way to go, why do so many British, Canadian and European companies offer medical insurance?

                    (Hint: government-provided health care sucks big time.)

              3. “Disgraceful because you didn’t get to punch the black man in the balls like you and your friends on the neo-Nazi internet so wanted.”

                So you’re pissed because you didn’t get a chance to starve several million Ukranians to death, you slimy pile of shit?

                1. Shorter Tony: By any means necessary.

              4. Tony|11.29.17 @ 3:36PM|#
                Disgraceful because you didn’t get to punch the black man in the balls like you and your friends on the neo-Nazi internet so wanted.
                Or do you actually want to take healthcare access away from people? Which form of dick are you today?

                You mean the black man Clarence Thomas who voted against Obamacare? Or the Nazis who are socialists as in National Socialist German Workers Party?

            2. Roberts’ decision is worse than you’ve spelled out, John. It is federal law that cases challenging a tax cannot be brought until the tax has been collected. The Obamacare case was brought well before the Obamacare “taxes” were collected. Therefore the case should have been thrown out when the SCOTUS majority ruled the penalties were taxes. But the majority, led by Roberts, ruled that the penalties were taxes for purposes of whether Congress can force you to buy something simply because you exist, but were not taxes for purposes of the timing issue. Now that’s legal contorting….

        2. He also refused to let the court hear arguments that Komrade Kagan should be recused from hearing the case because she worked as a Govt. lawyer to defend it in court before she joined SCOTUS!!

          Roberts sux Doooody Balls!!!

    3. The constitution says:

      The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States

      I see where it says Congress has the power to lay and collect taxes to provide for the common defense and general welfare, but I don’t see where it says taxes can be used as punishments or penalties.

      1. It doesn’t. Moreover, taxes are not penalties. Taxes are not used as penalties. Something is either one or the other. It can’t be both.

      2. Which is one of the reasons why considereing it a tax was novel and insidious, it gets around the due process requirements of imposing a fine.

  2. “Is Chief Justice John Roberts a secret liberal?” asks the provocative headline attached to an article at FiveThirtyEight. Spoiler alert: The article is dumb and the answer is “no.”
    He’s not a liberal but he is not a conservative. Roberts is more Progressive than Liberal. He does not really care that the Constitution strictly prohibits government from doing certain things. Even when the Constitution does not prohibit something, the other side is that there needs to be an enumerated power for the federal government to do something.

    There is no enumerated power to force Americans to buy something and the role of the courts is to reject a law as unconstitutional rather than “fix it.

    Roberts said this: “But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” King v. Burwell

  3. He has a habit of invoking judicial deference when it suits his purposes. Roberts is not a liberal or a conservative. He is something worse; a politician. Roberts a man who wrote his academic papers in law school with an eye to how they would look in a future Supreme Court confirmation hearing. Think about that and what is says about his character.

    Roberts cares about being liked and respected and powerful more than he cares about anything else. To the extent he has been a “conservative” it has been a way to get ahead. But when being a conservative on the court required him doing something that would make him unpopular, overturning Obamacare, he suddenly found the appeals of judicial deference. Contrast this to his dissent in Ogberfell. After two years of being loathed by conservatives, Roberts rises to the occasion to write a meaningless defense of marriage. Since his vote didn’t change anything, he wasn’t going to take any flack from liberals, and he figured conservatives would be a cheap date and buy his show of outrage.

    1. I can think of worse ways to be a person. Wanna guess?

      1. You?

      2. Be a lefty Democrat?

  4. In his entire tenure in government and on the bench, Roberts has never once made a hard decision or issued a meaningful opinion that was unpopular. Roberts is a reliable conservative jurist just so long as being so is in his interests and doesn’t require him making even the smallest sacrifice. He is in short, not exactly the guy you would want next to you in a foxhole and in many ways the most disreputable of all the current justices. Someone like Kagan may be a total mindless political hack, but at least she is a genuine and reliable one.

    1. Yes, let us not get into the polarization of is he a liberal or conservative.

      He’s not a liberal. The liberals don’t need him to be. They just need someone to fill the “even Bush appointee and conservative John Roberts agrees” seat.

      I think he regards himself as a Judicial Statesman reaching across the partisan divide on the *really* contentious issues – in other words, on the absolutely vital issues where progs will tear up the carpets if they lose. Here Roberts is open to being “reasonable” and not ticking off the progs too much.

      1. He is a man whose goal in life was to be liked by everyone but who will end up being loathed by everyone. He is a bit of a tragic figure in that regard.

        1. I don’t know if that will make him loathed, there’s milage to be gained from being the Responsible Jurist Who, Despite His Unfortunate Conservative Background, Sometimes Does the Right Thing.

          1. It will make him loathed. The problem is that by constantly switching sides in an effort to remain palatable to both, he will wind up being seen as an unreliable opportunist or traitor by both sides. Liberals are always going to loathe him. His vote to uphold Obamacare was forgotten and all the good will it generated destroyed the next time he wrote an opinion they didn’t like. At the same time, conservatives will likely never trust him or like him again.

            1. Look at Kennedy. Even while conservatives hate some of his decisions, they still need him for others to curb their loathing.

          2. I bet he can see the media profiles already:

            “John Roberts stands thoughtfully in line at the Supreme Court cafeteria. He usually orders the Caesar salad, but today he orders enchiladas.

            “‘Sotomayor persuaded me to put these on the menu,’ he says, ‘you have to be open to new things.’

            “This is emblematic of this complex, rugged Chief Justice. Defying his hard-right Republican origins, Roberts sometimes diverges from rigid ideological conformity to be open to new things in the law, from justice for gays to health care for all…”

            1. “‘Being Chief Justice for the whole country is different from being always a dissenter or fault-finder,’ meditates Roberts, not naming names but probably meaning Thomas and other hard-line conservatives. ‘You have to be able to unite your colleagues, and show the country that the Court is for all the people, including the young people who are our future.’

              “While not commenting on specific cases, Roberts may have been referring to his recent decision to join the majority in Tapppa Kegga Fraternity v. Neighborhood Association, affirming the existence of a ‘constitutional right to party’ located in the ‘penumbras of the Aurora Borealis.’ This decision provoked an emotional reaction from stodgy old guys who want kids to get off their lawn, but to modern-minded people, the decision seems an excellent example of adapting the constitution to fit the ever changing blah blah.”

  5. I think the term “useful idiot” is better than “liberal.”

  6. He confuses the outcome of a case with the legal reasoning that led to that outcome

    Well, it was an obvious outcome-based reasoning he gave us, so I don’t see how that matters.

    Bringing up “judicial restraint” doesn’t make it better, you’re simply highlighting the reason for his outcome-based reasoning (he didn’t want to make a real decision because judicial restraint, so he created his absurd ruling)

    Of course, none of that makes him a left-winger.

    1. Exactly that. The term “judicial deference” is utterly meaningless just like “judicial activism” is meaningless. The problem is not deference or activism. The problem is inconsistent and results based jurisprudence. And that, because it is results based, can be both deferential and activists depending on the situation.

      1. The ACA cases did not have Roberts deferring to the legislature, he wss deferring to the wants of the executive, even permitting the executive to rewrite a law if the written provisions did not fit the executive’s policy goals. Whatever you want to call it, that is far more troubling to give the executive the say on what a law reads.

        1. Yes, it is. Roberts was not deferring to the legislature there. Deferring to the legislature would have meant reading the law as it was written and not letting the executive pretend it meant something it clearly didn’t. And that as you point out is not what Roberts did. And yes, it is worse.

  7. If as it seems likely, Justice Kennedy, the author of Ogberfell, retires and is replaced by a justice who would vote to overturn it, I have very little doubt that Roberts, now faced with the prospect of actually taking a meaningful and unpopular opinion, would flip and vote to uphold Ogberfeld. He only dissented and made such a show of it because he knew it was a minority opinion and didn’t mean anything.

    1. “This is an emotional issue, but ultimately the stability of our precedents etc. etc. so I vote up uphold the Obergefell precedent.”

      1. Exactly. Now, when the Notorious RBG finally keels over, we may see Roberts writing a passionate minority opinion concern trolling conservatives over the wonders of gay marriage.

        1. I am predicting RBG (84 years old) croaking soon and Kennedy 81 years old) is either going to retire or croak soon too.

          People over 80 years old should not be driving for numerous reasons and I am sure some of those reasons to stop working in the highest court too.

          1. The signs are pretty clear Kennedy is going to retire at the end of this term. RBG is going to have to die before she is replaced. Given her health that could be any time but it is still anyone’s guess.

            1. Please do the decent thing and die already…

            2. Please do the decent thing and die already…

    2. John, as you point out in your good observations, I agree that Roberts would defend a prior decision during his tenure as Chief Justice. In that case, he would vote lefty or conservative to keep said precedent.

  8. Ain’t no secret about it, amirite???

  9. Instead, he performed some contorted judicial yoga, declaring that the law’s individual mandate was a constitutionally allowed tax, siding with the liberal bloc and saving Obamacare.

    Hey, come on now, we’re making progress. The Democrats are at least admitting that it required contorted judicial yoga to find their crown jewel constitutional.

    1. They would have preferred to have the law upheld under a broad Commerce Clause theory and are slightly annoyed that Roberts wouldn’t give them that. But he got the right result.

  10. Sexual assault roundup, Wednesday lunch edition: Garrison Keillor fired for sexual assault allegations.

    Burn motherfuckers, buuuuuurrrrrrrrnnnn. Get the marshmallows out, bitches.

    1. Wait, there is more. the head of the NPR news division went down too today.

      http://www.npr.org/sections/th…..llegations

      And some guy who makes shows based on comic books whose name may or may not mean anything to you.

      http://www.hollywoodreporter.c…..ms-1057390

      1. Seriously? Last week somebody put Keillor out there as a joke!

        1. “Well, you seem like a good bluegrass vocalist, but then, there are a lot of bluegrass vocalists who want to get on my show. So the question is, how much do you *want* to be on the show?”

          /Not an actual transcript, totally made up

        2. but he told the Minneapolis Star Tribune he had put his hand on a woman’s bare back when trying to console her.

          “I meant to pat her back after she told me about her unhappiness, and her shirt was open and my hand went up it about six inches. She recoiled. I apologized,” Keillor told the newspaper in an email. “I sent her an email of apology later, and she replied that she had forgiven me and not to think about it. We were friends. We continued to be friendly right up until her lawyer called.”

          wondering when the establishment media will retract their ‘always believe the woman’ meme.

          1. Typical he said/she said. I don’t like that we don’t have the woman’s statement and only have his side of the story along with knowing he was fired. That he was fired would suggest the accusation is more than he’s letting on (or at least I would hope so.) I reject ‘listen and believe’ when only one side is being presented. As a default position I’ll start by believing the accused did something at least moderately objectionable but the accuser exaggerated events.
            FWIW, when I do listen to NPR I turn it off quickly when he comes on. Hate poetry and shallow-minded people who like to think their words are profound.

  11. There’s conservative and then there’s infowars batshit insane, and to many people if you’re not the latter you don’t get to be in the club and you’re an evil liberal. Since every “moderate” conservative in public life today would be considered a right-wing radical 20 years ago, and even more so 40 years ago, I like to imagine what the next generation of “conservative” is going to look like. Something that looks even more putrescent and sounds even more like a feral child first learning to speak than Donald Trump. I admit it’s hard to think of something actually human, but I am surprised every day.

      1. John: Opposes poor children having healthcare. Favors 30 year-old men touching girls in the vagina.

        1. Poor tony. it must suck to go through life stupid and completely powerless.

          1. Powerless is being unable to refuse to endorse a child molester because of the (R) after his name.

            1. Tony|11.29.17 @ 3:38PM|#
              “Powerless is being unable to refuse to endorse a child molester because of the (R) after his name.”

              We understand, shitbag. You get to endorse mass-murderers with a (C) after their names.

              1. Civilian deaths from the Bush wars up 300% under Trump.

                1. Tony|11.29.17 @ 4:04PM|#
                  “Civilian deaths from the Bush wars up 300% under Trump.”

                  Oh, this is going to be fun:
                  “These Are Obama’s Wars Now”
                  […]
                  “No longer can the blame for the turmoil in Iraq and Afghanistan rest at the feet of George W. Bush alone. This is now Obama’s War on Terror, fully funded and operated by the Democratic Party. ”
                  http://original.antiwar.com/jo…..-wars-now/

                  “Obama is bullish on war, no matter how you spin it ”
                  […]
                  “Barack Obama has now been at war longer than any president in United States history, as the New York Times pointed out on Sunday. Barring some sort of peace miracle in the next six months, he will be the only president who ever served two full terms in office while constantly being at war.”
                  https://www.theguardian.com
                  /commentisfree/2016/may/16
                  /obama-legacy-on-war-drones-war-on-terror

                  We’ll wait to see if he can match that lying piece of shit.

                  1. Okay, and now they’re Trump’s wars, and civilian deaths are up 300%.

                    1. Who gives a rat’s ass about civilian deaths?

                    2. Tony, you surely mean Obama’s wars.

    1. Tony doesnt’t like Trump’s rolling back Obama’s policies and scaling back Obama’s wars.

  12. Here is what Roberts had to say for himself: “It is not our job to protect the people from the consequences of their political choices.” In short: Roberts made the familiar argument for judicial deference.

    That’s EXACTLY his job when laws are passed that violate the Constitution.

    I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

    1. That quote is correct if it means it is not the court’s job to overturn bad but constitutional policy. It is the court’s job to protect us from unconstitutional policies or ones that have no statutory authority.

    2. The constitution says judges are there to nullify the will of legislatures at their personal discretion?

      1. “The constitution says judges are there to nullify the will of legislatures at their personal discretion?”

        Look there!
        Scumbag poisons the well and hopes no one notices!
        Or maybe he’s so fucking stupid HE doesn’t notice.

      2. Aw, Tony thinks popular vote dictates the rules in our Constitutional Democratic Republic.

  13. So you’re just gonna ignore the data-based argument in favor of the much more wishy-washy rhetorical argument?

    1. To be clear, I don’t actually have an opinion on whether Roberts is a “secret liberal” or what-not. But you kind of cherry-picked one part out and ignored all the data that backed up the trend in other justices, as well as the trend in Roberts.

      For that matter, some of the best predictors for the SCOTUS don’t look at the legal details, they look at the people involved. So yeah, when you’re looking at trends and aggregate behavior, you can entirely ignore his reasoning for any given case.

  14. I think this is largely correct, but conservatives and liberals interpret the story of how Roberts got to yes on Obamacare differently. The right thinks he was pressured by the media and the president and cowered in fear for his reputation. The left thinks he split a baby by adding new conservative constitutional doctrine while not tarnishing the court’s reputation by making it into a partisan legislative body.

    Whatever the case, he resisted much pressure from the conservative bloc, so he must have felt pretty strongly in the end. And it’s possible that the cold shoulder he got from them afterward didn’t help win him back.

    You have to ask yourself why Republican appointees sometimes go off the reservation while the opposite doesn’t really happen. Maybe part of it is that at the highest levels of the judiciary, liberals are simply making better cases to their colleagues.

    1. Maybe they’e as fucking ignorant as you.

      1. Glad to see you’re all cleaned up and back someplace warm. Can I help you out with some cash?

        1. Tony|11.29.17 @ 4:02PM|#
          “Glad to see you’re all cleaned up and back someplace warm.”

          You seem confused, but that’s not surprising.

    2. Because Republicans don’t appoint doctrinaire constitutional conservatives, and they sometimes sway from what the honest interpretation of the document says.
      The other side always appoints doctrinaire communists, like you, Tony, who think of the Constitution as an impediment to the communist utopia, waiting around the corner.
      Why would the latter make any case, when the outcome is their desired result – a Soviet Amerika.

  15. If he was a liberal, would he have set it up so that Obama was allowed to privately retake the oath of office on a Koran?

  16. Roberts is from the statist school that protects government at the expense the people and the Constitution. If we are going to bother with a SCOTUS, it should at least not rewrite the plain meaning of words and the meaning the authors gave them when they passed the law, in order to create new arguments to keep power in the hands of the state…

  17. THE KING OF SOCIALIZED MEDICINE

  18. The entire “judicial” system moves in a leftward direction.
    Having “judicial deference” means moving that way, too.
    The true conservative lawyer, or judge, is as rare as hen’s teeth.

  19. * sigh * Reason bungles it again.

    “It is not our job to protect the people from the consequences of their political choices.”

    I quite agree. I agree with the idea; I would ordinarily agree with the analysis.

    But NEITHER THE PEOPLE NOR THEIR REPRESENTATIVES CHOSE THIS. The Democratic government in enacting Obamacare DID NOT CALL IT A TAX. That being so, it is judicial activism and legal-circumbendibus-mongering of the first water to contort things around and deem it a tax, in order to save the bill.

    To twist again, I think I understand Roberts’s motive, and it’s one with which I sympathize. He thought he had to do this so as to save the bill, in order that he could write the opinion– so that he could begin to kill the Commerce Clause logic with which the Left has justified so much of its agenda. But more important, I think, is the fact that judicial activism of this sort is a foundational pillar of the divisiveness and poison in American politics. If Roberts can devote the rest of his career to ending the ideological basis for that activism, I’ll call the whole thing good.

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