Two Years On: Obamacare

Wait, Limbaugh was speculating about this and it's a liberal ploy? Or did he claim the speculation was a liberal ploy?

 

I'm not sure what Limbaugh's final take on the theory was. I wasn't in the car very long. He was still describing the theory when I arrived at my destination.

I am saying it's a liberal ploy. And, it's an old one. The press and other liberal commentators love to signal how terrible any conservative ruling will be received.

I've never seen any similar pressure put on a liberal judge or legislator.

 

That is an incredibly vast oversimplification of how they arrive at a decision.

They are not going into a room and voting yay or nay. They talk about it. They talk about what they would sign onto in a majority opinion and what they wouldn't. They negotiate and haggle and concur and switch sides even after it's written.

 

I don't remember the specific cases, and I can't look them up right now, but if you read The Brethren, by Bob Woodward and Scott Armstrong, it seems clear that Warren Burger sometimes changed his vote to go along with the majority. I don't remember if he did it to avoid a 5-4 vote, but I'm pretty sure he did it to avoid 8-1 votes in which he was the lone dissenter. (That may just have been Burger looking after Burger, though, rather than the reputation of the entire Court.)

The larger point -- that the Justices are aware, at times, of the need to appear unified and to avoid looking partisan -- is certainly true. Earl Warren made sure Brown v. Board of Education was 9-0, and for a long time the Court remained unanimous in the segregation cases that followed Brown. (In Cooper v. Aaron -- in which they reminded Gov. Faubus that Arkansas wasn't allowed to ignore federal law and keep Little Rock schools segregated -- they went so far as to issue one opinion under all of their names.) As detailed in The Brethren, they were determined to be unanimous in United States v. Nixon, to avoid giving Tricky Dick any hint that he could ignore the Court and avoid complying with the special prosecutor's subpoena.

 

"The press."

This is true. There is never any pressure, for example, in terrorism or Fourth Amendment-related criminal cases. Or the flag-burning case, Texas v. Johnson.

Just a bunch of church mice, the right-wing media.

 

So it's political to prevent crooked state courts from changing the rules after the fact? That's a new one.

 

Hillary Clinton and Evan Bayh both supported a flag-burning Constitutional amendment because they believed in it. Fortunately for them, there is not any pressure put on a liberal legislator in such situations.

 

It certainly supplies the taint of politicism when the key fifth vote, a former Republican elected official, dances a little jig at a party full of people when the election results are (prematurely) announced.

 

No one should ever be happy about justice prevailing because when justice prevails, liberalism fails.

 

They might change their vote based on the thinking of another Justice or based on how narrow (or wide) a decision was crafted.

I don't know of a single instance of a Justice -- let alone someone like Roberts -- deciding to switch their vote to avoid a 5-4 decision. The idea is ludicrous. It's a liberal's wet dream.

 

How would you have voted on Brown v. Board of Education?

 

How would you ever know, though? As much as the general public thinks otherwise, there are always decisions with weird alliances. Personally, as a purist, I would hope that they wouldn't flip votes for that reason. But I'm not naive enough to think it doesn't happen. There's a negotiation. I'll sign on if you get rid of this language. Or add this. Or finesse this a little better.

Look, conservatives right now are the ones who want to overturn major Congressional legislation. The default rule is that major Congressional legislation, if at all possible, stands.

That is why the conservatives are in the crosshairs right now. If the shoe were on the opposite foot and this was a Bush or Romney legislative package, the liberal wing would be the ones being accused of playing politics, and feeling the pressure to uphold it.