What did Professor Amy Coney Barrett say about NFIB v. Sebelius?

"In NFIB v. Sebelius, the inspiration for Barnett’s book, Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute."


In 2017, then-Professor Amy Coney Barrett wrote a review of Randy Barnett's book, Our Republican Constitution. I encourage you to read the article in Constitutional Commentary. She articulates her vision of judicial philosophy quite cogently. Here, I want to draw attention to one passage about the Obamacare decision.

She begins by noting that Randy's book was motivated, in part, by the Chief's opinion in NFIB v. Sebelius.

Our Republican Constitution is animated in large part by Barnett's frustration with what he regards as a misguided attachment to judicial restraint, particularly on the part of conservatives.51

FN51:  See p. 17 (asserting that with NFIB v. Sebelius, "[t]he chickens of the conservative commitment to judicial restraint had thus come home to roost."); see also p. 81 (asserting that "the tragedy of the Supreme Court's decision in the Obamacare case was made possible by modern-day 'judicial conservatives' accepting as valid the progressive attack on our Republican Constitution."); p. 248 ("The visibility of our Obamacare challenge and the way a Republican-nominated, conservative chief justice snatched defeat from the jaws of victory, may prove to be a political inflection point.").

Next, Barrett offers a brief characterization of the Chief's controlling opinion that has been quoted repeatedly:

In NFIB v. Sebelius, the inspiration for Barnett's book, Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress's commerce power.52

FN52: 52. See NFIB v. Sebelius, 132 S. Ct. 2566, 2593–2600 (2012) (characterizing the "penalty" imposed by the individual mandate as a "tax"). The other four justices in the majority on this issue would not have needed to construe the penalty as a tax to save the statute, because they thought that the Commerce Clause authorized Congress to impose the mandate. See id. at 2609 (Ginsburg, J., concurring in part, dissenting in part) ("Unlike the Chief Justice, however, I would hold, alternatively, that the Commerce Clause authorizes Congress to enact the minimum coverage provision."). The four dissenting justices objected that "[w]e have never held that any exaction imposed for violation of the law is an exercise of Congress' taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty." See id. at 2651 (joint opinion of Scalia, J., Kennedy, J., Thomas, J., and Alito, J., dissenting).

As a threshold matter, Her recitation of NFIB  is accurate. She did not repeat the shibboleth that the Chief upheld the mandate as a tax. He construed the penalty as a tax, and that decision allowed him to uphold the statute (Section 5000A). I agree the Chief's reading was not "plausible."

Is this statement relevant to the pending challenge in California v. Texas? Critics will no doubt call on her to recuse. A few thoughts. First, Texas has not asked the Court to reverse, or reconsider NFIB. Indeed, the Plaintiffs are relying on the Chief's saving construction to mount the challenge. Second I don't know that calling a Supreme Court decision not "plausible" would warrant disqualification in all cases concerning that precedent. She did not prejudge how that precedent would affect a given controversy. Third, Supreme Court Justices tend to follow different standards for recusal than lower court judges, in order to avoid a short-handed Court. I am sure Judge Barrett will address this question during her hearing.

A personal note. I have been dithering about finishing my third book on the Obamacare litigation. I think the trilogy will be ready in 2021 or so.

NEXT: Harassment Defendants "Argue That Plaintiff ... Cannot Be Considered Jewish Because His Mother Is Not Jewish"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Your book should be handy accompaniment to enactment of single-payer health care.

    Which, I hope, will formally be labeled “Obamacare” . . . making your book at least somewhat timely.

    1. Keep sqwaking like a chicken nerd.

      1. How do you tell which chickens are the chicken nerds?

        1. The beauty of this loser’s illiteracy is that one can’t determine whether chicken describes the “sqwaking” or the nerd.

  2. The whole “you commented on legal matters in this general area therefore you must recuse” argument is ridiculous anyway. The point of recusal is to prevent judges from corrupting the process for a givej case, such as having a relationship with the prosecutor or sometbing like that. Not to prevent anyone who has ever had an opinion on X to listen to argumentation and issue a judgment on X.

    The rule is you have to be neutral to the parties in the case, not on the legal matter itself. To have a rule for the latter is absurd. If this was at all plasuable to recuse in California vs. Texas then none of the other justices in NFIB should participate as well.

    And they are completely different cases anyway! NFIB is on whether Congress had the power to issue the mandate. California v. Texas is on whether zeroing the mandate makes the mandate unconstitutional, which is different.

    1. Also just because you said an old decision was wrong doesn’t mean you would necessarily vote to reverse it if given the chance or try to achieve the same result through another somewhat related case. Kennedy wanted to throw out the whole ACA in NFIB…but joined the majority in King v. Burwell without comment.

      1. And Kennedy wasn’t exactly a right-winger, either…

        1. Kennedy had the occasional swing into more liberal territory on social issues, but was a pretty reliable conservative vote on other issues.

    2. Exactly. It makes as much sense as saying “oh you voted on the decision in Case X? Clearly you are biased and therefore can’t sit on a motion to reconsider that case. Or any case on the same topic.”

  3. Maybe you would get your book project done if you spent less time posting here? Just a thought.

    1. I’m sure you probably have more important things to do than comment here too.

  4. So how much rolling back are conservatives prepared to do? Should retirees, most of whom vote Republican, be worried about social security being declared unconstitutional?

    1. Between now and next spring?

      Seems unlikely.

      1. They have to rush it through before the D’s take back the Court…

        1. So never in other words.

          1. I agree. Republican logic is self-defeating.

    2. Yes. There is no limit to what the R Court will do if they have the votes. Remember that R’s still believe that Medicare is “socialism.” And so it’s goodbye ACA, goodbye preexisting condition coverage, goodbye labor law and goodbye Voting Rights Act. Conservative heaven and mass misery. In the meantime, the Trump death toll exceeds 205,000.

      1. Right, because it was mass misery before government almighty stepped up to the plate to save everybody’s bacon.

        And Trump, well, I guess he used some 205,000 clip capacity magazine to kill all those people.

        1. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf,

          It wasn’t murder, just negligent homicide.

          1. Calling it that is as absurd as claiming it is the toll of the Chinese terrorist attack on the US. The US death toll per capita is far from the largest rate. It also has a large fraction (>33%) due to deaths in NY, NJ, and California – hardly states run by friend of the Orange Clown.

            If you think that you know what should have been done, please answer why it did not work in California. It is easy to criticize.

            Incidentally, the Chinese covid statistics are either false or if true substantive evidence of a deliberate biowarfare attack. Personally I believe that the former is true.

            1. So we have a national disaster, and the President bears no responsibility? Is that what you think? “Idon’t take responsibility at all,” he said. You agree?

              Let’s see.

              Trump pulled CDC observers out of China last year, which destroyed cooperation between Chinese and US health officials, and reduced the amount of information we had.

              His travel bans were ineffective, and almost certainly made the situation in New York drastically worse. You had thousands of people coming in from Europe, waiting in dense crowds in airports for hours, while an inadequate number of customs and airport personnel tried to process them. New York went form 220 cases to 25,000 in two weeks.

              He ignored the playbook created by Obama, similar to one created by Bush and generally didn’t try to do anything.

              Trump lied continually, downplaying the pandemic despite knowing how serious it was. That certainly affected behavior. Who knows, it may even have affected the judgment of some of those governors and mayors you talk about.

              Trump has ridiculed the idea of masks, and encouraged those who refuse to wear them.

              Trump let the governors bid against one another for PPE, driving up prices and causing confusion, instead of setting up centralized purchasing procedures.

              Trump abandoned the plan Kushner’s task force came up with for nationwide testing, partly because he felt it was just a blue state problem and he didn’t care, partly because he feared the numbers would go up, hurting him politically. (Remember when he didn’t wasn’t infected cruise ship passengers coming ashore, because it would “make the numbers look bad?”)

              He actually wants to reduce testing, and pressured the CDC to change its guidance on testing asymptomatic patients to keep the numbers down.

              He has demoralized government professionals with his political BS, and surrounded himslef with incompetent yesmen.

              He pushed idiotic “cures.”

              Trump has constantly sent out messages minimizing the problem, which are at odds with statements from the CDC and FDA and others, and have sown confusion. But, hey, his uncle taught at MIT so he’s a genius who knows more than anyone about everything.

              Finally, as to those states you mention. First, California remains slightly below national averages. Second, while it’s true that governors, especially Cuomo (and Mayor DeBlasio) blundered at first, those states seem to have actually learned something, unlike places like FL and GA, where moronic Trump lickspittles Kemp and DeSantis have made the situation worse. Check the numbers since, say, Memorial Day.

              Finally, let’s take CA, NY, and NJ out of the numbers. That reduces our deaths/M from 631 to 535, right in there with Panama, better than Belgium(860), Spain(668), Italy(593), the UK(617), and Sweden(581), but worse than France(485), Netherlands(372), Ireland(364), South Africa(275), Canada(245), Switzerland(238), Portugal(192), Israel(159), Germany(114), Denmark(112), Austria(87), Australia(34), Japan(12).

              So yeah. Negligent homicide. Not 200,000 counts, but enough.

          2. You aren’t even as clever as that proverbial bag of hammers.

            Where exactly did Trump have the magical power to trick all those mayors and governors, so many of whom were Democratic, into “negligently” murdering 205,000 people?

            The only thing “negligent” is you thinking you have a convincing argument.

            1. And the hospitals are cooking the books for $$$$.

              COVID deaths include motorcycle crash victims, stage 4 terminal cancer, etc.

              1. No, they don’t. Just like everything else you say, this is made up.

                1. The CDC COVID death count is “Deaths with COVID”, not “Deaths from COVID”.


            2. Where exactly did Trump have the magical power to trick all those mayors and governors, so many of whom were Democratic, into “negligently” murdering 205,000 people?


              Child’s play.

              1. so this would’ve been the one time they listened to President Trump?

                Would they have done so before or after calling him a racist, you know like they actually did in reality?

              2. As with gun control, local measures don’t work if you’ve got people bringing it in from outside. Some solutions only work if they’re done at the national level.

                1. States have police powers, including quaratine powers. Which they’ve been quite willing to use.

                2. Some solutions only work if they’re done at the national level.

                  At which point, folks clumsily pivot to “Trump is not a king — we’ll do as we see fit at the local level”.

            3. The Democrats might have a better argument if they had solutions other than totalitarian centralized command and control, admitted their own mistakes lead to tens of thousands of needless deaths, and didn’t run political ads screaming about 200,000 deaths, and literally in the next sentence, and I mean literally, squeak about 40 million unemployed, as if that were Trump’s fault, rather than the nation regrettably doing what they should do and lock thing down for social distancing.

              They are being putrid, poisonous political hacks rather than reasoned opposition.

            4. Right. Trump was utterly powerless to do anything at all.

              Talk about a stupid argument.

      2. Which party overwhelmingly got the VRA and the rest through Congress?

        It’s individual rights versus group rights — and if you want to talk poor working conditions, the horror stories are coming from Amazon.

        1. Well the Democratic Speaker and Democratic Senate majority leader were able to sideline Southern Democrats so that they ended up only needing a handful of Republican votes to ensure passage to place in front of a Democratic President who was strongly in favor of it. So I’m going to go with Republicans.

          1. “After the assassination of President John F. Kennedy, Democrat president Lyndon B. Johnson submitted the Civil Rights Act of 1964 to Congress in Kennedy’s name. However, Democrats in the U.S. Senate filibustered the 1964 legislation, led partly by U.S. Senator Robert C. Byrd (D-WV), former West Virginia KKK “Exalted Cyclops,” as even liberal Slate Magazine admits.

            It took Republicans to break the filibuster. Senate majority leader Mike Mansfield (D-MT) bypassed the Judiciary Committee chaired by an anti-civil rights Democrat. The filibuster lasted 57 working days and was broken when 27 Republican senators (82% of Republican senators) and 46 Democrat senators (68% of Democrat senators) voted for cloture. Without overwhelming Republican support for the Civil Rights Act of 1964, it would have died over a Democrat-led filibuster.”

            Read more: https://www.americanthinker.com/articles/2020/07/republicans_led_the_way_on_civil_rights.html#ixzz6ZD5CoOzA

            1. Lol at the fact that you think I don’t know this history far better than you do.

              1. It’s hard to put any faith at all in someone who thinks 27 is a handful.

                1. Senators were tiny in those days. You could fit 27 of them in one hand.

                2. I said needed a handful. Not that there wasn’t a lot. Ed’s original framing made it seem like republicans were responsible for the bill which is a completely dishonest framing.

                  1. 2/3 vote in those days to break a filibuster.

                    So with only 46 Dems, you needed 21 GOP votes.

                    I’d say 1/5 of the Senate is a big, big “handful”.

                    1. I also look at the 82% versus 68%.

                      In academia, that’s a “B” versus a “D.”

                3. The handful depends on the hand — some hands are large, some are average, and some are small, with the tiny fingers of a vulgarian.

      3. There’s nothing stopping Congress from passing a new and perfectly legal Voting Rights Act, complete with their desired, UPDATED, preclearance requirements.

        Same with many other issues that this hypothetical Supreme Court of yours might strike down.

        1. There’s nothing stopping Congress from passing a new and perfectly legal Voting Rights Act, complete with their desired, UPDATED, preclearance requirements.

          What makes you suppose that would continue true after ACB gets on the Court? Actually, should the election deliver all three political branches to the Ds, then an attempt at the very VRA you mention might prove a useful diagnostic to show whether or not Court enlargement would be legitimate. If it were well drafted, and the Court struck it down anyway, then it would be time to enlarge the Court.

          1. By the time the next Voting Rights Act reaches the Court, I expect, 13 justices will be waiting for it.

            1. Ahh yes. It truly approaches a reasonable minimum size for a proper legislature, just as intended.el

        2. Yes there is. A Republican Senate.

          1. I think you meant Democratic Senators…

            Democrats love preclearance…so long as it mostly applies to others.

            1. The wages of bigotry include preclearance, clingers.

              The next Voting Rights Act is going to be magnificent, with plenty of criminal penalties.

              1. Hopefully so. We’ll get an orthodox jewish district in NYC, right?

              2. The pro-VRA crowd was put on notice by Robert’s North Austin opinion in 2009, when the Democrats controlled all 3 branches of government.

                The Senate, even with 2018, and now 2020, is not going to have 60 D votes.

                What makes you think the Democrats will pass a new VRA?

                They could have in 2009. But didn’t. And now they’re supposed to in 2021 or something, with maybe 54 seats in the Senate at most.

                1. Oops, by “3 branches” I actually meant the the 2 parts of Congress and the presidency.

                2. “The Senate, even with 2018, and now 2020, is not going to have 60 D votes. ”

                  Not to need them. Filibuster is a Senate rule, and Senate rules are set by majority vote.

                  1. If you look at this issue rationally, and without the rose-tinted partisan lens, then it’s very, very unlikely that a new Voting Rights Act will ever be passed.

                    Let’s say it’s Jan 21, 2021 and Joe Bide is President.

                    History tells us that Presidents get at most 2 major pieces of legislation through Congress.

                    Obama: Obamacare, stimulus

                    Trump: tax cuts, and only barely, and I thought tax cuts were a Republican thing

                    And when Biden takes office, he’ll have a pandemic on his hands. A tanked economy. And perhaps racial unrest on top of all that.

                    And you expect him to burn up his political capital to move a new Voting Rights Act through Congress?

                    There’s a reason the Democrats have only, in the last few weeks, started seriously talking about a new Voting Rights Act and drafted a possible bill. Passing a new VRA simply isn’t a popular idea. The Republicans are automatically against the idea. Even the left-wing of the Democratic party is barely aware of what the VRA is, or what happened to the VRA, or why it needs reworking.

                    And just think about the optics of the entire thing: Biden is likely to win a semi-decisive or decisive victory. Now he’s in office, and he wants to pass a Voting Rights Act…even though he won, in a semi-decisive to decisive manner? He’s going to burn political capital ramming through an acceptable VRA instead of focusing on “average” Americans and their dinner tables? He’s going to look PAST the pandemic and the economy to “fix” voting rights, or as the media will spin it, EXPANDING the franchise to likely Democrats even AFTER he won?

                    The Biden agenda has little room for much major legislation. He’s going to have to burn major political capital on a stimulus bill. That’s 1/2, at best. Maybe even 1/1 major pieces of legislation that will get passed on his clock.

                    1. ” History tells us that Presidents get at most 2 major pieces of legislation through Congress. ”

                      You neglect to consider the effect of elimination of the 60-vote threshold. Why?

                3. “The Senate, even with 2018, and now 2020, is not going to have 60 D votes.”

                  Why would 60 votes be relevant to enactment of a new voting rights law?

                  If 51 or 52 votes can put a justice on the Supreme Court, passing voting rights legislation will be a breeze.

                  1. You’re right, they could use the nuclear option.

                    Even then, I doubt much will happen on the VRA front. I think, as highly self-selected readers of an esoteric law blog, we’re overestimating the importance of updating the preclearance requirements for the VRA and awareness of the VRA among the electorate. Shelby v Holder didn’t exactly cause people to flood the pollbooths in 2016.

                    I’d expect more symbolic bills to be passed before a VRA revision bill such as maybe that lynching bill held up by Rand Paul. A lot of ink was spilled for that symbolic bill.

        3. So you agree that preclearance requirements are Constitutional?

          Then what made the ones that were there unconstitutional?

          1. No findings of current discrimination.

            Its right there in the opinion.

            1. No findings of current discrimination.

              Yeah. Because the preclearance requirements were in place. Roberts’ logic on this is astonishingly bad.

              “Since we put in the safeguards we haven’t had problems, so it must be OK to remove them.”

              1. Things have changed in 50 years. It needed new findings of fact.

                Not Roberts’ fault Dems were lazy.

                BTW, VRA still exists. A state makes a change, it is still subject to challenge in the courts.

                1. And the policies passed the moment that decision came down show bernard is correct and you are wrong.

                  1. Oh, poor whittle blacks have to get a $5 photo ID, and learn to go to the correct polling places. Oh noes!

                    1. That’s hardly the only restriction they instantiated.

                      Also nice nakedly coming out for a poll tax.

                      Of course, you also don’t like women voting so maybe you should move to some less democratic country.

                    2. I’m still trying to understand how developing a blog whose followers include a large number of strident bigots was expected to make movement conservatism more popular or palatable in modern America.

                    3. “Oh, poor whittle blacks have to get a $5 photo ID”

                      Which isn’t a problem in a country that has a Constitution that allows for poll taxes.

              2. That’s not what the court said. They said the preclearance was a constitutionally extraordinary remedy, and to keep it justified, you had to use new data to justify it, and not 50 year old data.

                And Congress, supine, scared Congress, should do its job.

                Why this is a problem for anyone I don’t know.

        4. Well, nothing except the republicans controlled senate who refuses to take the matter up. Otherwise, you nailed it.

    3. Sigh… No.

      One of the things about “conservatives” on the court is they actually listen to the law and Constitution, and don’t imagine new ways to twist the law around to get their preferred policy preference (as some liberals do). By “finding” new ways to interpret the laws to get the results they want.

      Social security rests on two simple powers. The ability to tax and the ability to spend. The government taxes people. It then spends money on giving people money. These are long standing constitutional capabilities that the federal government has. The law there was passed quite well.

      The ACA was 90% constitutionally fine, pre-existing conditions and all. Where it erred was the mandate, which forced people to do something (buy a product) by law. That type of power isn’t in the Constitution. It’s just not there. And if you like Constitutional limits of any sort (like Conservatives do….) then it couldn’t be made out of thin air.

      What should’ve happened is the Mandate should’ve simply been severed from the rest of the law. The rest of the law didn’t really depend on it (as we can see from the penalty being slashed to zero, with little to no ill effects). But such a big deal was made about it HAD to be part of the law, or else none of it would work….

      So, Roberts made a saving construction, as a tax, for political purposes. He didn’t want to give the precedence for the Constitution being able to force people to do things and buy things. His saving construction wasn’t in the law, but it could’ve potentially been worded that way.

      1. >Social security rests on two simple powers. The ability to tax and the ability to spend.

        The federal government explicitly has the power to tax income based on the 16th amendment, sure. But it doesn’t have the power to spend it on whatever it likes. I’m struggling to see which enumerated power is involved in giving money to old people.

        1. liberals think the enumerated powers are just examples and the real authority is granted by the “provide for the common Defense and general Welfare” part of the statement. Meaning if a liberal believes it promotes some social good in their opinion its constitutional.

        2. Article one, section 8: “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;”

          “Provide for the general welfare”…

          1. “Provide for the general welfare” … does that mean the people in government can spend however they want so long as they say it’s providing for the general welfare?

            1. There are, quite frankly, fairly few limits on government spending, so long as it’s authorized by law.

              From a “protection of people’s rights” perspective…which was a lot of what the Constitution was designed to do…the government spending money didn’t overtly interfere with their rights.

              1. Indeed. The main limitation on the spending power was that there wasn’t much revenue. And then the federal government and the states explicitly decided to make it easier for the government to raise revenue with the sixteenth amendment.

              2. What is that list of powers in the enumerated powers clause for?

                I mean what purpose does that list serve?

                1. Those are about the power to forbid or mandate, not to spend

                2. Some feared without enumeration, future politicians might claim the rights don’t exist. Others feared, by enumerating them, future politicians might claim those were the only rights that existed. Hence the 10th.

                  As it turns out, both fears were correct. Future politicians now, as then, are scum suckers twisting things to their advantage and that of their friends and family and “donors”.

                  This is why I have little problem witb Living Constitutionalism finding new rights because of changing values in the people. This is very distinct from the plague of the left, which is fine with this, but also enjoys discovering new powers for the government, sans amendment to explicitely grant it such.

                  These are not equivalent, equally valid things. One is in support of the concept of freedom. The other the exact opposite.

                3. Again, one of the enumurated powers is “Provide for the general welfare”

                  What do you think that clause means?

                  1. Again, one of the enumurated [sic] powers is “Provide for the general welfare”

                    Can you cite a SCOTUS (or even appellate court) case that supports your claim?

                    A preamble is just that – a preamble. It neither expands or contracts the text of the law it introduces.

                    Perhaps you should share your insight with this Federal Court educational web site so they can “correct” their misunderstanding so students are not misled (good luck):

                    The preamble is an introduction to the highest law of the land; it is not the law. It does not define government powers or individual rights.

                    If your claim is correct, why did the framers bother prattling on in Article I, Section 8 with a list of powers since the preamble gives Congress unlimited power as long as they exercise it to “provide for the general welfare”? Seems odd given the brevity of most of the Constitution.

                    By your definition, it seems that power, being in the preamble rather than in Article I (defining the powers of the Legislative Branch), Article II (defining the power of the Executive Branch), or Article III (defining the power of the Judicial Branch), gives all branches that power. So, if a majority of the Supreme Court thinks that banning abortion would “provide for the general welfare”, do they have that power and can issue that edict the day after Barrett is sworn in? Or, perhaps, ban all progressive tax schemes because they feel doing so would “provide for the general welfare”?

                    I rarely call claims “stupid” – but this is one I’m always compelled to label so because even the people making the claim can’t truly believe it unless they are stupid and ignorant.

      2. Armchair, why do SCOTUS “conservatives” need the quotation marks, when they always decide every overtly political case in favor of Republicans? Every one, from Bush v. Gore through Citizens United, through Shelby County, down to right now.

        1. So, one of the common flaws in this logic is that it overlooks any case that doesn’t fit the narrative.

          There are several “overtly political cases” that weren’t decided in favor of Republicans. Notably Trump v. Mazars USA, LLP most recently.

          So, perhaps you should rethink your logic in a less biased manner, and approach it more systematically.

          1. Armchair, I have been systematic, but perhaps I was not clear enough explaining the system. When I say, “overtly political,” I do not mean to denote every case which has some kind of political valance, or which divides partisans along the usual lines. I mean instead to include only cases which bear directly on the political process, and especially on election outcomes. By that standard, not even Roe v. Wade is a political case for the the purpose of my kind of evaluation.

            And it is a useful evaluation. It shows better than anything else I have found exactly what Roberts is doing (a lot) on behalf of the political right. His tactic seems to be to buy credibility and husband court legitimacy while considering the politically-adjacent cases—which, however hot-button they are, do not directly affect the law of elections—as with Roe v. Wade or Obamacare. Then Roberts expends that carefully husbanded legitimacy to purchase scope for systematic partisan judgments on case after case which are actually about the political process, like Shelby County.

            Although I object to the partisanship, it strikes me as brilliant tactically, and the very best way to keep pushing right-wing politics into the legal system for as long as possible. I think the right-wingers here are foolish when they criticize Roberts on political grounds.

            To me, Roberts seems to be doing as much to help right wingers incorporate right-wing policy into the legal system as any judge reasonably could. They just don’t like him because he seems reluctant to whack the hornets’ nest by conspicuously ruling that right wing policy is also the law of the land. For movement conservatives, that seems disloyal.

            1. You think it’s “right wing policy” to not want to have a commerce tax on the act of not engaging in commerce?

              1. Sam, let me untangle that for you. I think it is, and should be, left wing policy to tax people who can afford health insurance, can afford the tax, and who do not buy sufficient health insurance to cover lifetime medical costs. I know you think that is tyranny. I don’t care. I do think such a tax is constitutional.

                Also, I think our nation, like every developed nation on earth, is in a pickle on paying for healthcare. I think the only methods you would approve cannot get the job done, probably (unless you are exceptionally rich) not even for you. Most people who argue the way you do still threaten to become public charges in the event of catastrophic costs, or in old age. That means you are—apparently unwittingly—demanding public subsidy to pay for health insurance you think you can afford. Even if that works for you, most Americans are not even positioned to do it—they don’t have the right kind of employment.

            2. (Rolls eyes)

              “when they always decide every overtly political case in favor of Republicans?”**

              **…Only so long at Stephen Lathrop defines exactly which case is going to be overtly political, and can exclude those that he doesn’t want to be.

              Yup, I see how this argument goes.

              1. I would say that when it comes to cases that bear directly on election outcomes SCOTUS has consistently ruled in favor of the GOP. Citizens United, Shelby County, gerrymandering, the WIsconsin business, etc.

                And pease stop with the pieties about how conservatives only “listen to the law,” etc. It’s obnoxious.

                1. US Term Limits v Thorton?

                  Minnesota Voters Alliance v. Mansky?

                  Chiafalo v. Washington?

                  1. Armchair:

                    1. US Term Limits v Thorton. Irrelevant, Roberts had not yet been appointed.

                    2. Minnesota Voters Alliance v. Mansky. Given my definition, arguably a case on point. But not really a point for your side. MVA calls itself non-partisan, but was in fact a right-wing (although libertarian tinged) plaintiff. Democrats do not regard the Institute for Justice as a member of their team. Do you?

                    3. Chiafalo v. Washington. If this one is ever cited for partisan effect, it will most likely be in a case against Democrats, when right wingers challenge the NPVIC, to protect their structural advantage in the EC . That makes this one another important political case. Problem is, you can’t easily anticipate how the arguments would go. It could also be cited on behalf of Democrats. Which side got the SCOTUS nod would probably depend on the facts, and which side would win an election if it won the case. On balance, given the current Court lineup, and given Roberts’ history, I suggest that makes this another case to count against Roberts. I simply can’t imagine Roberts would ever make himself the 5th vote to abolish the Republicans’ structural advantage in the EC. Can you?

                    Three strikes. You’re out. Got any others?

                    1. Oh come on. Yeah, if you twist each case in that manner, you can make any case “right wing.”

                      I can do the same thing. Citizens United vs. FEC … democrats outset Republicans last election and will do so this election. Therefore, under your logic, its a “left wing” decision.

                      And Mansky … you’re reaching. The ACLU also was on that case and wrote in favor of the plantiff. And IJ does a ton of work that isn’t obviously right wing … unless Indiana vs. Timbs and striking down civil asset forfeiture is now a cuase celebration among Republicans.

                    2. “**…Only so long at Stephen Lathrop defines exactly which case is going to be overtly political, and can exclude those that he doesn’t want to be.”

                      Uh huh.. Told you so….

                  2. I don’t see the relevance of those cases to my comment.

                    Plus, I obviously meant in recent years. Thornton was a 1995 case, decided a decade before Roberts was on the Supreme Court.

                    1. A case about electors in the electoral college doesn’t bear directly on electoral outcomes? With a second about wearing pro-candidate messages at the polls not bearing directly on outcomes?

                      I mean seriously. Really?

              2. Armchair, no, I don’t think you do see how this argument goes. It goes like respectable arguments typically do. The person making the argument defines his terms, then those who wish to contest the argument dispute whether the terms and the argument combine to make the conclusion persuasive.

                You don’t like that, apparently. You seem to want to say, “No, I will define your terms, then everyone will see how bad your argument is. Ha! Ha! Ha!”

                That isn’t a respectable sort of counter-argument. See if you can do better.

                1. Uh huh… you “define the terms” as a shifting sands, that change whenever counterpoints are made.

                  Yep, that’s how your arguments go.

                  1. Armchair, no. This point about Roberts is one I have made here at VC at least 3 or 4 times previously. Unlike this time, in some of those previous instances I went on a bit about exactly what terms I was talking about, and why I chose them.

                    The point here remains the same as in those previous instances—that the best test to see if Roberts is a partisan is to include his partisan record on cases which are about the political process—and to exclude other cases which inspire hot-button partisan divisions, but which have other kinds of subject matter. That is what I said before. That is what I said this time.

                    But this time I was getting bored repeating myself, so I waited to see if it would be necessary to do it in detail again. That’s where you came in.

                    Why don’t you try to take me on my own terms, and come up with some cases which show Roberts adjusting the political process in ways which clearly delight Democrats and dismay Republicans. When I asked this before, I expected I must have missed something, and someone better than I am at researching cases would find at least an exception or two. So far, nothing. Can you do better?

        2. “in favor of Republicans”

          Do you even read what you write? Conservatives does not equal Republicans.

          1. Bob, I will grant you that. “Conservatives” doesn’t even equal movement conservatives, or approximate them, either. In fact, movement conservatives seem to hate ideological conservatives precisely for their conservative principles—principles too stodgy to satisfy movement conservative radicalism, and also too apt to thwart movement conservative opportunism.

        3. Every one, from Bush v. Gore through Citizens United

          Point of order: Citizens United stated The People take their rights with them wherever they go, including joining Congressionally-created groups like corporations, and Congress may not force you to give up your rights as the price of admission.

          Money buys ads, which is the press part of freedom of the press — the mass production and distribution of speech.

          In the SC arguments, one justice asked that, if a corporation published a book about a candidate with one month to go before the election, would that book be illegal?

          “Yes,” the government lawyer was forced to say.

          An illegal book. In the United States.


          1. You can’t win a case during oral argument, but you sure can lose one.

          2. ” including joining Congressionally-created groups like corporations”

            Congress creates a very short list of corporations. It’s almost like corporations are created by state law, not federal.

    4. ” Should retirees, most of whom vote Republican, be worried about social security being declared unconstitutional?”

      Declared unconstitutional? Nah.

      Declared bankrupt? Oh, yeah.

  5. High IQ high achieving Americans should be designing space ships and not interpreting laws drafted by Congress and an over 200 year old document. Paul Ryan figured out how to get rid of the individual mandate and he has maybe a 130 IQ. Just a total misallocation of national brain power to have big brains going into law and not STEM or even economics. So the big brains in developing countries go into economics which is how we got Obama Sr and Kamala’s father in this country.

    1. “high IQ” doesn’t mean “good at everything”. Lawyers are notoriously bad at math which means pushing them into STEM fields is going to be unsatisfactory for everybody. Better to have them arguing over who should pay the victims of the bridge collapse, rather than designing more bridges to collapse.

      1. Actually Volokh was a math wunderkind and Kerr is an engineer.

        1. And now they have careers they find rewarding.

          1. By denying people access to health care?? By getting people gun rights that when they exercise them their spouses get killed with no recourse??

            1. They weren’t married.
              And did you hear about the dead body found in her car?

              1. Her boyfriend exercised his 2A right secured in Heller in which Volokh played a major role. How did that work out for everyone??

                1. She wasn’t innocent.

                  1. So? Since when are “non-innocent” people who aren’t threatening anyone supposed to be summarily executed by law enforcement?

                    For someone who probably likes to say “all lives matter,” you seem to be going through a lot of effort to explain why this particular one didn’t.

                    1. Law talking guy comment – “So? Since when are “non-innocent” people who aren’t threatening anyone supposed to be summarily executed by law enforcement?”

                      Michael Brown – was threatening the police officer multiple times during the encounter
                      George Floyd – died due to drug over dose,
                      Jacob blake – shot will attempting to retrieve knife

                      Care to provide some examples – The ones I just cited dont support the narrative of BLM

                    2. Joe_dallas: “George Floyd – died due to drug over dose,”

                      Nice try. The medical examiner who said Floyd had taken a potentially lethal dose of fentanyl is the same dude who said it was a homicide, not an overdose. (And the follow-up review by the Armed Forces medical examiner agreed.)

                      Even if your list of people deserved to die, the fact that Breonna a Taylor had previously dated a drug dealer (which I guess is Dr. Ed 2’s definition of “not innocent”), are you suggesting that rises to the level of deserving to be killed by the police?

                    3. JB –
                      You need to get up to speed the facts reported in the autopsy report and the toxicology report. Try google.

                      A) The ME said it was homicide in the press release. No supporting data in the Autopsy report
                      B) The press release was issued before the toxicology report .
                      C) the autopsy report supports the drug overdose
                      D) The autopsy report reported zero trauma associated with alleged cause of death proffered by the state.

                      The ME will come across as complete dumbpuck if he tries to support the statement in the press release since neither the autopsy report nor the toxicology report supports the homicide statement in the press release.

                    4. JB – in response to Breanna Taylor – that was clearly unfortunate.

                      Unfortunately, she chose to date/interact with a drug dealer.
                      When you hang around bad people, bad things happen. unfortunately it cut her life short. While she was killed by police, the odds were far higher that she would have been killed by a rival drug dealer.

                    5. Michael Brown – threatening police officers without a weapon doesn’t mean it’s time to execute you

                      George Floyd – drug overdose nonsense is unsupported right-wing bullshit – no ME found that.

                      Jacob blake – we don’t know what he was doing but also there were no officers in knife range so there is no life-threatening exigency

                      And Breanna Taylor was unfortunate, but also guilt by associtation.

                      You have a pretty good pattern here of some pretty lame excuses for police killings. who are you trying to convince?

                    6. Sarcastro comment – “George Floyd – drug overdose nonsense is unsupported right-wing bullshit – no ME found that.”

                      FYI – of course the ME didnt find the drug overdose – It was toxicology lab that did the work and reported the findings.

                      Seriously are you far behind on the facts


                      googling the toxicology is that hard
                      Try it sometime instead of embarrassing yourself

                    7. JB & Sacastro
                      From the autopsy report:
                      – No life-threatening injuries identified
                      A. No facial, oral mucosal, or conjunctival petechiae
                      B. No injuries of anterior muscles of neck or laryngeal
                      C. No scalp soft tissue, skull, or brain injuries
                      D. No chest wall soft tissue injuries, rib fractures (other
                      than a single rib fracture from CPR), vertebral column
                      injuries, or visceral injuries
                      E. Incision and subcutaneous dissection of posterior and
                      lateral neck, shoulders, back, flanks, and buttocks
                      negative for occult trauma.

                    8. Joe_dallas: Toxicology reports don’t determine causes of death, so they definitely don’t say “died of a drug overdose”. You can tell this by actually taking a look at the toxicology report that you linked that definitely doesn’t list a cause of death anywhere within it.

                      On the other hand, here’s a link to the report from the the Medical Examiner of the Armed Forces:


                      Unlike your document, this does have an opinion about the cause of death:

                      “The Office of the Armed Forces Medical Examiner agrees with the autopsy findings and the cause of death certification of George Floyd as determined by the Hennepin County Medical Examiner’s Office. His death was caused by the police subdual and restraint in the setting of severe hypertensive atherosclerotic cardiovascular disease, and methamphetamine and fentanyl intoxication. The subdual and restraint had elements of positional and mechanical asphyxiation. The presence of sickle cell trait is a significant finding in this context.

                      We concur with the reported manner of death of homicide.”

                    9. Joe, it sure looks like you think there’s no such thing as a bad shoot when the targets are black (and, to be fair, perhaps against all targets).

                      That’s pretty ominous.

                    10. JB – you obviously didnt read the Air force report

                      A) The AF did not perform an autopsy
                      B) The AF confirmed zero trauma in the air passages
                      C) The AF did not review or have access to the toxicology report

                      the documents reviewed by the AF ME – MATERIALS REVIEWED:

                      of special note in the AF ME report – and hypertensive
                      atherosclerotic cardiovascular disease with severe coronary artery atherosclerosis. Of note, no petechial hemorrhages were identified in the conjunctivae and oral mucosa. the layered neck

                    11. Joe_dallas: The ASME (Armed Services, not Air Force) reviewed the Hennepin County ME’s autopsy report, which you can see here:


                      That report, in turn, contains the toxicology report. So, yes they did review the toxicology report. Your other two points are irrelevant, but to the extent that you care who did the actual autopsy, that was the Hennepin County ME and he also concluded that the COD was a homicide, not an overdose. It’s true that he did not find the specific injuries you describe, but that doesn’t change their conclusion.

                    12. JB
                      The AF ME make the following statement :

                      Of note, no petechial hemorrhages were identified in the conjunctivae and oral mucosa. the layered neck.

                      The hennepin County ME makes similar statement

                      The definition:
                      A petechial hemorrhage is a tiny pinpoint red mark that is an important sign of asphyxia caused by some external means of obstructing the airways. They are sometimes also called petechiae. Their presence often indicates a death by manual strangulation, hanging, or smothering.Aug 7, 2020

                      Petechial Hemorrhage | Encyclopedia.com

                      Please explain how the ME can reach the conclusion of homicide when no trauma is evident.

                      11ng of fentanyl when 9ng is nearly always fatal

                  2. You’re a jackass.

                    You keep bringing up all sorts of accusations against Taylor and others, none of which have crap to do with her shooting.

                    Stop it. It’s disgusting.

            2. Assuming you’re talking about Breona Taylor—Kentucky allowed concealed carry permits and private gun ownership long before Heller (or McDonald, which is the relevant precedent) and would still allow it if those cases were somehow overruled tomorrow.

      2. I’m a word person, with careers in journalism and law. (Can I pick them or what?). I once had a boss who said, “anyone can be good at math” after I told him that I couldn’t manage numbers even with a calculator. After he saw my next set of calculations, he agreed that there might be people who can’t be good at math.

        1. I am talking about law professors and Federal Circuit judges and their law clerks. Generally they are people with genius level IQs and the Volokh conspirators probably average 160 IQ. They love solving puzzles and playing logic games and in America we have incentives that make the legal profession attractive to them because being a law school professor or Federal Circuit court judge is prestigious and they get to go to the opera and symphony or whatever.

          1. the Volokh conspirators probably average 160 IQ.

            May I ask where you are getting these IQ estimates?

            1. It’s public information. I read an interview with Volokh in which he says his IQ is 204 and I just happened to be listening to a radio show when Blackman was asked his IQ and I don’t remember the exact number but it was way above genius level. Plus IQ correlates to LSAT score and LSAT correlates to law school 1L grades (FYA) and FYA correlates to law school success and law school success is necessary to become a professor or Federal Circuit clerk and judge…so do the math!

              1. IQ tests are not accurate outside of the 70-130 range, nor were they ever intended to be.

                1. So why would Volokh and Blackman tout their IQ then? And how was Volokh a math wunderkind if he didn’t have a high IQ? And if the Second Amendment’s text is so “plain meaning” why was it necessary for someone with a 204 IQ to interpret it over 200 years after it was ratified?? Couldn’t a normal IQ person have figured out the meaning??

                  So Derpawitz in the impeachment hearing laid bare how dumb it is to have high IQ people pontificating on the Constitution—his appeal to authority is meaningless when the people promoting him rejected his constitutional analysis in 1998. So his high IQ merely enables him to perform Jedi mind tricks on gullible jurors but senators are immune to his Jedi mind tricks. So if a constitutional scholar has a high IQ that means they are merely performing Jedi mind tricks and not really interpreting the constitution…because a 160 IQ should NOT be necessary to interpret the constitution!!!

                  1. I’m not going to try to explain the concepts of “statistical outliers” and “standard deviations” a few minutes before midnight.

                    Let me just say that while an oven thermometer can measure room temperatures, it can’t do so accurately as each gradient is 25 degrees — while there isn’t that much difference between a 350 and a 375 degree oven, there is a BIG difference between a 50 degree room and a 75 degree room.

                    The 204 figure is totally meaningless because there aren’t enough people with a Volock-level IQ to statistically norm the exam for this — not to mention a whole lot of other things. Just like all your oven thermometer can tell you at room temperature is that the oven isn’t on, all the 204 figure can tell you that he’s smart.

                    Remember that the IQ is designed to be accurate between 70 & 130.

                    1. But wouldn’t you agree that a 125 IQ should be sufficient to interpret the Constitution?? Why was it necessary for someone with an off the chart IQ to interpret the 2A over 200 years after it was ratified…such a head scratcher. 😉

                  2. Having a high IQ can help you forsee any unintended consequences of your ruling.

                    It’s like chess and caring

                    1. It’s like chess and being able to analyze the long-term effects of your immediate move.

                    2. So originalists and strict constructionists should look into their crystal ball just as much as they look back into the history and look down at the text?? Should we consider appointing futurists to the Supreme Court??

                    3. Why do so many high IQ people suppose without evidence that they are all-purpose experts? Why are so many who do that lawyers?

                      Taking a VC IQ average of 160 as valid, what explains the fact that some of those folks are alleged originalists, who think they can be their own experts on history, despite demonstrable ignorance of the methods professional historians (also including 160 IQs) use to reason historically.

                      Why is it essentially impossible to find a 160 IQ historian, or medical doctor, or nuclear physicist, who would claim to be an expert, or even well informed, about the law? What determines why extreme intelligence in some fields alerts practitioners to their limitations in other fields they don’t know, but extreme intelligence in the legal field so often comes with obtuseness, and a tendency to denigrate other kinds of expertise?

                    4. You haven’t met many doctors, have you?

                    5. There sure seem to be a lot of 160 IQ folks running around here. If that were measurable it would be 3 out of every 100,000 people in the country, about 10,000 people.

                      I don’t think that many of them are lawyers or historians or are even concentrated in any one field.

                    6. “So originalists and strict constructionists should look into their crystal ball just as much as they look back into the history and look down at the text?? Should we consider appointing futurists to the Supreme Court??”

                      As Justice Scalia famously said, he was a “faint-hearted originalist.”

                      It’s not a bad thing to recognize the consequences of your decisions.

                      It’s another thing, however, to form decisions solely on the basis of their consequences.

                    7. Expounding on my previous point–it is likely that Justice Scalia would have disagreed with Gorsuch’s expansive, bordering on literalist, interpretation of the 1964 Civil Rights Act. Scalia isn’t blind to the consequences of rulings, and recognizing the consequences of your rulings is not a bad thing.

                    8. I disagree, the underlying rationale of Obergefell logically extends to cover polygamy…but Kennedy still wrote the opinion because the Supreme Court won’t ever weigh in on polygamy and so polygamous marriages will never receive the protections of same sex marriage.

                    9. Kennedy’s opinion is a great example. It was written over the span of 1 weekend, according to him. A higher IQ individual, such as Blackman or Volokh, would have been able to draft a better reasoned opinion in the time it takes for a 1L to finish a Con Law 1 exam. Kennedy’s brainpower was severely lacking, which caused him to fall back on vacuous, specious reasoning.

              2. Volokh’s IQ is not 204.

                That’s just barely less than seven standard deviations above the mean. That’s about a one in a trillion chance.


                1. It’s unlikely that anyne has ever lived with an IQ of 204, or close, various stories notwithstanding.

                2. No instrument – test – exists which could measure that, or anything near it. Imagine how may questions there would have to be to distinguish 204 from, say, 190, one in a hundred billion.

                1. “Volokh’s IQ is not 204.” Definitely not. It’s 206! It’s like people didn’t even go read the article referred to 😉

                  1. I think these people believe high IQ means a person is wise, it simply means they have a high IQ. I grew up on a street with 5 families that sent all their children to Ivy League or equivalents (so Cal Tech and Harvard et al) so I just don’t see high IQ as intimidating or anything other than the highest IQ sibling (the ones that attended Harvard and Cal Tech) were always working on projects while I was playing basketball or board games with the other genius sibling. Btw, high IQ high achievers love to work which is why it is important for society to provide incentives for them to engage in work that advances society…because they are going to work hard regardless.

                2. “That’s just barely less than seven standard deviations above the mean. That’s about a one in a trillion chance.”

                  But one has to have some background in qualitative research to understand that…

                  1. Once again, these IQ numbers come from the mouths of Volokh and Blackman and high IQ people generally love statistics so they obviously know about the stuff you are talking about. And I have known people that graduated from Cal Tech and Harvard and they say they have IQs over 140…why would they say that if the number was meaningless??

              3. If you believe Blackman is way above genius level then I have a bridge to sell you.

          2. they get to go to the opera and symphony or whatever.

            You have to pass a test?

            I thought you just had to buy a ticket.

          3. The theory of IQ was originally only applicable to children, so look at adults who talk about their IQs with disdain.

      3. James,
        Finally a post from you that I agree with!

    2. Typical central planner mentality, thinking you have the wisdom and knowledge to tell everyone else what to do.

      Tell me, do you also think it your duty and right to tell these high-IQ people what hobbies to have, where to live, how to dress?

      Fuck off, slaver. Go mind your own damn business.

      1. Yes I do, because our society is providing incentives that ends up misallocating brain power.

        1. You confuse society and government. Government fucks up everything it touches, especially including incentives. Society is the spontaneous organization of people doing what they want, not what you and the other elites want.

          1. The law school boom of the early 2000s was enabled by federal student loans.

            1. It started long before that — I saw it in the late ’80s.
              And yes, it was all Federal loan money…

            2. So another thing the people in government fucked up?

              1. Anti-government kooks are among my favorite disaffected clingers . . . and an apt audience for a faux libertarian blog.

      2. And then they tell someone with a 125 IQ that he’s too smart to be a cop. https://abcnews.go.com/US/court-oks-barring-high-iqs-cops/story?id=95836

        Personally, I’d like to see some smart cops, they might not do stupid things.

        1. Apparently to this day detectives get most of the important information by getting people to talk…so EQ might be more important to be a detective.

    3. I argue the converse — do you have any ideas how many *stupid* lawyers there are, or how many problems they cause? Or how much they cost society?

      1. Sure, but John Pierce, Lin Wood, and Larry Klayman are still only three people. The damage they can do isn’t as apocalyptic as all that.

        1. Well there’s also Michael Avenatti, Michael Cohen, and Stephen Biss.

          1. Dear god — you forgot LaywerIDon’tLike. For shame!

            1. Well two of them aren’t lawyers anymore due to committing felonies. And the third was once suspended and is eventually going to get sanctioned for frivolous filings. So, it’s not that I don’t like them, it’s more like they are embarrassments to the entire profession.

      2. ” do you have any ideas how many *stupid* lawyers there are”

        No, but I know of at least one extremely stupid “educational policy consultant”.

    4. What makes you think Ryan is particularly intelligent?

      An IQ of 130 would put him in the top 2.5%. I’ve seen nothing to indicate he’s anywhere near that bright.

      1. At most his IQ is 130, I have an IQ solidly in the 120s and I consider myself to have a widdle pea bwain compared to the Volokh conspirators. 😉

    5. Prof. Volokh:

      Are you proud that your carefully cultivated class of conservative commenters regularly offers the likes of this?:

      “So the big brains in developing countries go into economics which is how we got Obama Sr and Kamala’s father in this country.”

      That guy is also talking about your father, regardless of whether you have the social skills to recognize it or the character to care.

      1. I voted for Hillary and will be voting for Biden. Harris’ father and Obama’s father were both genius high achievers in developing countries and economics was seen as the most important field with respect to improving their home countries in the 1950s and 1960s. People believed economics was almost magic which is why the best and brightest went into economics with the goal of helping their home country and obviously families and friends and neighbors. So they studied economics in America because we provided the best opportunity for them forwarding their education in economics.

  6. Whether she is correct or not the fact is Roberts does not respond to bad faith arguments. He didn’t want another Bush v Gore. I hope she turns out to be the same.

  7. So, what did she say about it? Barely anything, apparently. But here are some footnotes, for some reason.

    Barrett may not think much of Roberts’ acrobatics, but that’s an easy thing to express skepticism about when your opinion doesn’t actually matter. She’ll face a different question when she’s asked to conclude that ACA as a whole needs to be invalidated because a toothless penalty-tax is actually not severable from the rest of the statute. If she adopts that reasoning – which strikes me as beyond incoherent – it’ll represent a new high watermark in terms of ends-driven jurisprudence at the Supreme Court level.

    It’ll be an important litmus test for where the 6+3 Court’s head is, when they hand a decision down in that case. They could conclude simply that the mandate is to be stricken, but is also severable, from the rest of the ACA. That would represent adherence to precedent and only a slight shift in alignment. But if they use it as a new opportunity to cast the whole thing out – well, it’ll be a different ballgame altogether. Hard to see that any freedom- or equality-promoting precedent will remain safe, then.

    1. ” it’ll represent a new high watermark in terms of ends-driven jurisprudence at the Supreme Court level. ”

      Worse than Wickard? Or Bush v. Gore? That’s a pretty high bar to clear.

    2. I don’t even think they need to address the severability question. I have a feeling that the bench will be extremely skeptical of plaintiffs’ standing to sue, given the Court’s prior precedents in that area.

      1. They should find the entire Trump tax cut unconstitutional because the provision is in that law and not the ACA which has already been declared constitutional. So if it is unconstitutional then it is clearly not severable at least with respect to the extra $300 billion in tax cuts its repeal secured. So if Democrats win that is $300 billion of funny money that would get to play with.

      2. I don’t even think they need to address the severability question. I have a feeling that the bench will be extremely skeptical of plaintiffs’ standing to sue, given the Court’s prior precedents in that area.

        1) I hate the phrase “prior precedents.” It’s redundant.

        2) I’ve been saying this for quite some time; given a $0 mandate, the arguments for standing are borderline frivolous.

        1. That’s a good point about “prior precedents.” I’ll make an effort to avoid it now.

    3. Right.

      The whole argument here is utterly ridiculous. No sensible court could possibly buy it.

      Still, Barnett’s not worried. I’m sure he has good insurance, so who cares if his crackpot ideas mean others lose theirs.

      1. Go to SCOTUSBlog and look at the Amici on each side. The side supporting affirming the Fifth Circuit has very few briefs, one of which is extremely off topic, and others are by complete clowns like John Eastman and Andrew Schlafly.

        1. Well known that courts merely count Amici briefs to determine results.

  8. I still maintain that Roberts was extorted. I don’t know by whom or how, but when you look at Operation Crossfire Hurricane, and what we KNOW to be true, would you really be surprised at anything?

    1. He was blackmailed by his gay pimp Obama. Why reinvent the wheel?

      1. If Roberts was being blackmailed he wouldn’t have decided Rucho or Shelby County the way he did.

        1. If you’re going to bring logic into it, we might as well not have these threads at all.

  9. I’d rather live a real life, being myself, having real friends and a real marriage, saying what I think, instead of measuring every word in light of possibly being nominated to the f***ing Supreme Court some day.

    1. There are very few jobs where you can say what you think.

      1. Most jobs don’t go into any of that.

        Most jobs, they don’t care about your beliefs, they just want you to be able to do the job.

        1. My best ever job was changing transmissions. My girlfriend made three times as much as me, dancing either topless or nude (for which she had to drive into Connecticut). The other wrenches would go nuts when she visited the shop (the fact she was “colored” was a plus, to them).

          No, when I applied, they never asked me what I thought about anything, all they cared about was whether I could clean out those torque converters (which smelled like old chicken grease due to that Type F fluid) and whether I remembered to attach the kickdown cable before I screwed in the change plate.

          1. Whale oil, if I am not mistaken.

        2. BCC — Before Cancel Culture….

  10. Had the ACA been adopted to explicitly impose a “Healthcare Surcharge Tax”, which did not apply to those who had Healthcare Insurance complying with the ACA, many people including me and my employees might have had to pay the surcharge, in spite of having health insurance far beyond that mandated of the ACA. In fact the ACA was a drafting nightmare as are most recent large laws. Congress cannon be bothered to actually addressed how the laws with actually work.

    1. Well, they can, and they do, but that’s usually before the Republicans get involved to make sure the whole thing is as ineffectual as possible (can’t have laws that actually work, otherwise people might not believe that the government is the problem), and to make sure there are enough loopholes for their lobbyist friends. As with ACA, that usually results in making the law 10 times as long and 10 times as crappy.

      1. As with the ACA? Can you point to the Republican-proposed amendments that made that bill longer and less workable?

        1. Of course, we know that Republicans refused to work on it, so the Democrats had to guess at what their objections would be and address those.
          That’s why the private insurance market was incorporated into the ACA instead of a simpler, single-payer system.

  11. One nice thing about Justice Barrett is that she is not an Ivy indoctrinated, America hating scum bag, as all the other Justices are.

    1. You should get out more. I suggest Fort Greene, Brooklyn.

        1. That’s not Fort Greene.

  12. Fact: If you want to achieve universal healthcare, trading a Supreme Court justice for the end of the filibuster in the Senate is an extremely good deal. The Barrett nomination facilitates this outcome.

    The argument that a simple majority is good enough to establish a generation-long conservative majority on the Supreme Court but not to pass ordinary legislation just doesn’t sound very persuasive. And it wakes liberals up to the point that they cannot preserve all of the gains of the past through the gridlock enabled by the Senate filibuster. If they want to keep those gains (and achieve new ones) they will have to win at the ballot box.

    The real principle behind blocking Garland while voting on Barrett is majority rule. McConnell tried to articulate a different principle for Garland, because he has long been against the majority rule principle for the Senate, but has now had to abandon that principle now. Many can only see the immediate shiny object in front of them and fail to realize the major significance of this concession by McConnell. A non-majority rule principle in the Senate was only sustainable based on mutual trust and a willingness of each side to resist taking advantage of opportunities otherwise earned at the ballot box in the name of a more “deliberative” Senate. But as the Barrett nomination shows, the logic of majority rule is simply too compelling to resist when it is the only way to achieve a major win. There simply was no realistic possibility of McConnell standing up to his own party to delay a nomination. Not given the strength and depth of desire for a more solid conservative Supreme Court majority. In other words, democracy is alive and well in the Republican Party.

    But, much more importantly, the same principle applies to legislation. Yes, it is true that liberal legislation may also be repealed by majority vote with the filibuster gone, just as easily as it may be enacted. But, when that happens, Senators will have to take the political heat for such decisions. That is how democracy is supposed to work.

    Majority rule is also definitely preferable to passive aggressive strategies such as “starve the beast” that attempt to achieve conservative goals while evading accountability and making the country much weaker by degrading its financial position all at the same time.

    This turn of events will also help eliminate passivity in politics and low participation rates, as people come to the realization that elections are likely to have somewhat more significant immediate consequences in the future than they have had in the past. This is a good thing, because the United States has been sitting on its laurels for much too long now.

    Many liberals are frankly horrified at the outcome here. They shouldn’t be. This is an outcome to celebrate. Conservatives have long been obsessed with the judiciary. But the real action will be happening within the political branches.

    The best outcome would be to eliminate the filibuster WITHOUT immediately packing the Supreme Court. If the Supreme Court goes crazy (and there is reason to doubt that it will), it can always be packed later. At the very least, a conservative Supreme Court should be given a chance and we can judge its performance later rather than prejudge it. Instead of focusing on the Supreme Court, liberals ought to be more focused on delivering more concrete wins to the people they must motivate to win elections.

    1. Better still, reduce the Court to 7 justices now, moving the two least-senior justices to lower courts. That would leave SCOTUS as a nicely divided partisan contest, with 4 R-type justices in the majority. But the majority would thenceforth be under a salutory discipline, lest an offended Congress decide to add 2 new justices to the mix, and bring it back to 9.

      I suggest doing that would avert the present court packing crisis. It might also drive a good deal of overt partisanship out of the Court’s decisions, especially the decisions which bear directly on politics, like Shelby County. All of that would be to the good.

      1. Shrinking the court, with a threat to pack it later if it doesn’t rule the way Congress wants, is as blatantly corrupt as any other threat to pack it.

        Also, Article III says that the only way to remove a justice is for bad behavior, i.e. impeachment. You can’t just shrink the Court and demote them.

        1. Michael P, you cite the Constitution, but it is the Constitution which also empowers Congress to shrink the Court. So there is an ambiguity in the Constitution. And actually, Article III does not say what you say it does. Instead it says, “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” Note that it does not say continuance in any particular office, and remember also that the history of the judicial branch includes instances of Supreme Court justices serving also intermittently as inferior court judges.

          Interpreting all that to mean Justices can be demoted to inferior courts, so long as they continue to serve for life, and receive undiminished compensation, seems fully to resolve the ambiguity. Interpreting Article III the way you insist would require at least suspension of the Congressional power to govern the size of the Supreme Court. Throw in that other Constitutional language (including in Article III) implies a mild sort of Congressional supremacy over the Judicial Branch, and I think it shows your interpretation is probably mistaken.

          1. Note that it does not say continuance in any particular office

            Of course it does. You even quoted it: it says the judges shall continue to hold some office or another. It says the judges shall hold their offices—the ones they were originally appointed to.

            Now, you’re correct that Congress has at times modified the duties of the office of Supreme Court justice (although your description suggests you misunderstand how). But I don’t see how you get from there to moving judges to a different position without their consent (and that of the president, of course).

            1. It says the judges shall hold their offices—the ones they were originally appointed to.

              Did you notice that the language you added after the em-dash is not something the Constitution says? Why couldn’t you just stop when the quote ran out? Perhaps you were troubled that without embellishment the language did not quite say what you wanted it to?

          2. You will have to point me to the part of the Constitution that empowers Congress to shrink the Court — I think you reach beyond the text. The better resolution is to take that sentence of Article III at its face, and recognize that Congress can only formally shrink the Court when a seat becomes vacant.

            The Constitution distinguishes between the supreme and inferior courts in the clause establishing their tenure, so it is atextual to claim that Congress could arbitrarily move people between justice and judge positions. It would also run afoul of various nomination processes implied by the Constitution.

        2. There is nothing corrupt about packing the court. This is a check on the judiciary that reminds the judges of the Supreme Court that their decisions must be based on reason and be persuasive, taken overall.

        3. ” You can’t just shrink the Court and demote them.”

          Because you said so?

      2. I would prefer removing the least competent justice first
        Which would mean Sotomayer would be gone first.

        Shuette v Bamn says a lot about her compentency

        Sotomayer dissent (summarized) – Its unconstitutional for the state of michigan to have a state constitutional amendment requiring compliance with the 14th amendment of the US Constitution.

  13. Our Republican Constitution is animated in large part by Barnett’s frustration with what he regards as a misguided attachment to judicial restraint, particularly on the part of conservatives

    If that is a fair sample of Barrett’s writing, then it by itself raises serious questions about her fitness to serve. It certainly weighs against claims that she is, “brilliant,” or can even think clearly. Of course, the nation’s Constitution is not animated in any part by Randy Barnett’s frustrations. Nor, for an alleged originalist, could it be, “animated,” by anything some person alive today might have to say about it.

    See p. 17 (asserting that with NFIB v. Sebelius, “[t]he chickens of the conservative commitment to judicial restraint had thus come home to roost.”); see also p. 81 (asserting that “the tragedy of the Supreme Court’s decision in the Obamacare case was made possible by modern-day ‘judicial conservatives’ accepting as valid the progressive attack on our Republican Constitution.”); p. 248 (“The visibility of our Obamacare challenge and the way a Republican-nominated, conservative chief justice snatched defeat from the jaws of victory, may prove to be a political inflection point.”

    That reeks of partisan animus, but it is unclear as written here whether the animus on display is Barrett’s, or Josh Blackman’s, or some muddle of the two. Once again, more clarity (from her, and from her boosters) will be required before anyone should conclude Barrett is fit to serve on SCOTUS.

    1. Fortunately her fitness to serve isn’t really at issue, only her ability to be sufficiently subtle when she signals to the Republicans in the senate that she will vote the way they like.

      1. M,
        You and most others do the Nation as disservice when you refer to Justices as R or D justices. Each does have a judicial philosophy independent of partisan poiitics and each tries to judge fairly in accordance iwth the law and their approach to interpreting the law.

        Demeaning their integrity in that process weakens the least corrupt public institution that America has.

        Think it throgh.

    2. If that is a fair sample of Barrett’s writing, then it by itself raises serious questions about her fitness to serve. It certainly weighs against claims that she is, “brilliant,” or can even think clearly. Of course, the nation’s Constitution is not animated in any part by Randy Barnett’s frustrations. Nor, for an alleged originalist, could it be, “animated,” by anything some person alive today might have to say about it.

      Um, “Our Republican Constitution” is Barnett’s book. That book is what was being described as being animated, not the U.S. constitution.

      1. DN, thanks for that that, I did overlook it. It would have been helpful if the Barrett quotation had preserved the distinction, instead of eliding it typographically.

    3. The animus on display is yours, as is the inability to read. If you check her original article, the book’s title was italicized in the sentence you quote, making it even clearer that she was referring to the book rather than to the Constitution itself.

    4. Speaking of reading skills.

  14. F***ing h*** these pieces of s*** are going to take away obamacare.

    1. Obamacare took away my insurance with its $7000 deductible. It gave it to an undeserving Democrat.

    2. Obamacare took away my risk-rated insurance that only cost me $170 a month to protect my family of 4.

      1. Sam, have you read that policy? You might want to double check the, “protect,” part.

        1. It is amazing how many of those here who think the ACA is tyranny also fall into the under 5% of people whose insurance fell below ACA standards.

          1. It is not amazing. It is strongly predictable.

          2. Why are the ACA standards the line between “good” and “bad”?

            1. Because they were duly passed by representatives of the America People and signed into law by a similarly elected President.

              As laid out in our constitution, we delegate to those the authority to do such line drawing and value judgments. An authority they duly exercised.

              1. Uh, weren’t the ACA standards decided by bureaucrats in HHS?

                Further, you have to be utterly shitting me to claim that because something was passed by Congress it is therefore good.

                That is mindblowingly stupid, even for you.

                1. So?

                  I’m not saying all policies passed by Congress are good – you asked “Why are the ACA standards the line between “good” and “bad”?”

                  I explained that the reason is that’s how our republic works.

                  You can disagree, but don’t pretend everything you disagree with is illegitimate.

                  1. How are the ACA standards good because they were passed by Congress, which they weren’t, but not all policies passed by Congress also good?

                    Whats your framework for deciding? From your comment, the sole determinant for good is if it was passed by our duly elected representatives.

                    1. We have collectively instantiated a framework for making such value judgments as a society.

                      If you disagree, you can lobby to change that decision. Or vote for different people. Or you can protest.

                      You are doing none of those, just being grumpy online.

        2. Of course I read it, I bought it.

          It was a high deductible, risk-rated, catastrophic plan. I self-insured my family for medical costs below $10,000 a year.

          Now, because of a bunch of economic illiterates I pay $1600 a month for community rated insurance to pay for a bunch of care I don’t need and don’t consume.

          Only a moron would buy insurance to cover something like getting a physical or contraception. Who buys insurance for trivial, routine costs they know they are going to incur? Idiots who can’t do money math, that’s who.

          1. It’s pretty baseline common knowledge that health insurance is cheaper than paying for routine checkups out of pocket.

            Methinks you may not be the health economics expert you are letting on…

            1. Are you for real?

              One year of ACA typical health insurance is $25,000 for a family of 4.

              You think the typical family of four spends $25,000 a year in routine checkups?

                1. In 2019, annual premiums for health coverage for a family of four cost $20,576, but employers picked up 71% of that cost.

                  So you’re just lying about your costs, it seems.

                  I generally assume good faith, but the idea that you’re both someone ideologically dead-set against Obamacare and also in the extreme outliers of those affected both in the status quo ante and the status quo after beggars belief.

                  I get you want to have some compelling facts to make your ideological argument also a practical one, but that’s no excuse for this kind of nonsense.

                  1. Why do you think entrepreneurs are extreme outliers?

                    Probably the same reason you think think paying an insurance company $20k a year to get a free $200 checkup you may or may not use is less expensive than paying $2400 a year and paying $200 if you get a checkup.

                    1. “Why do you think entrepreneurs are extreme outliers?”

                      Most people are better at math.
                      An entrepreneur sees a 1 in 10,000 success story and says “that could be me!”

                    2. Self-insured picks from a different market.

          2. “Only a moron would buy insurance to cover something like getting a physical or contraception.”

            Preventative care is usually cheaper than waiting for the disease or condition to develop to the point where it’s causing problems. This is why insurance companies pay for these. It’s also why dental insurance pays for checkups.

            there’s something wrong with your calculations if you conclude that only a moron would take reality into account when financial planning.

      2. “Obamacare took away my risk-rated insurance that only cost me $170 a month to protect my family of 4.”

        $170 is what it costs to insure a couple of pets, not a family.

        This sounds similar to ‘I got me a great vehicle and that idiot down at Clem’s 999-And-Under-Bargain Lot let it go for $420.’

        1. Yellow dog Kirkland,
          You’re paying an awful lot for pet insurance.

          1. I have not purchased pet insurance, expect never to purchase pet insurance, and do not understand why anyone would.

            But I recognize that people do.

      3. I call BS.

        No way you had a family policy that cost $170/month.

        1. If that’s the employee-side share of an employer policy, that’s not implausible. Or if it’s just a catastrophic risk policy as opposed to the pre-paid health care policies we call “insurance” now.

          1. TK,
            I think that you have identified the flaw in the statement

        2. Sure I did. Do you not remember the insurance market before the ACA?

          High-deductible catastrophic, risk rated plan. I self-insured for the first $10k.

          I had healthcare freedom, I could go to any doctor I wanted for routine care and pick up any scripts I needed. No lobbyists, government meddlers, or insurance companies involved.

          And we were covered for catastrophic events like major accidents and cancer, etc.

          You know, like real, actual insurance.

          1. LOL if you think the pre-ACA healthcare world was freedom.

            And if you’re now paying $1600 a month, something’s odd about that as well.

            1. What’s odd about it?

              I could go to any doctor I wanted. Can you do that now? Or do you have to go in-network or be punished like a child?

              1. Not all doctors take out of pocket payments, you liar.

                1. How do some doctors not taking cash, which I doubt, make me a liar?

                  1. Do you need some help constructing your lies so you actually understand them?

  15. Attention Biden and Congressional Democrats:

    If you win the elwctions and decide to reinstate the individual mandate next year, please be sure to scratch out the word “penalty” wherever it appears and write in the word “tax” instead.

    You’ll save yourselves a lot of hassle with the courts. A small army of law professors, including the Conspiracy’s own Professor Blackman, will have to find some other teapot to stew their tempests in. And it won’t make the slightest difference to anyone else in terms of how the law actually functions.

    1. “If you win the elwctions and decide to reinstate the individual mandate next year”

      Don’t hold your breath. The individual mandate was a Republican idea, adopted as part of a plan to keep them from rebelling against the ACA. Now, the new plan will be single-payer from the outset, pushing insurance companies completely out of the market. One the one hand, you get faceless government bureaucrats making decisions about what gets coverage and what doesn’t. On the other hand, only a Republican fears that more than having a private bureaucrat with a profit motive for not providing you healthcare making decisions about what gets coverage and what doesn’t.

Please to post comments