Two Years On: Obamacare

And you are basing this on an extensive knowledge of the history of the court? Or what Rush told you to believe?

 

What you must understand is that Kennedy also cares about the legitimacy of the Court. He could tell Roberts to "fuck off" if he wanted to, and Roberts would have to join the dissent for a 5-4 vote. But the subtext of this theory is that Kennedy would be willing to narrow the opinion to get Roberts on board, because Kennedy also wants at least a 6-3 decision.

 

So, now we're up to two Justices who care about the "legitimacy" of the Court -- Chief Roberts and Justice Kennedy.

None of the liberals are interested in joining a 6-3 decision, if it goes against them?

Nice theory.

 

We've been "up to two" for quite a while.

There is also a vast academic literature on the Court's historical efforts to maintain its legitimacy because it is not a democratically elected branch.

This theory did not begin this week.

 

It's also worth pointing out again, here, that there are a ton of ways this can go.

They could call it a tax. That's the end.

They could uphold on commerce. They could overrule on commerce. They could sever the mandate, they could not sever the mandate.

The desire for consenus is in play more than you're giving it credit for at least in part because you are assuming a binary position that isn't there.

For instance, what if the vote is 5-4 -- either way on commerce clause -- but 7-2 that it's a poorly worded tax? The desire for consensus would probably lead to them ruling on the tax part and leaving the rest alone.

 

Slate -- praying for Conservatives to be swayed by an emotional argument in what is a legal decision.

A liberal's wet dream.

It must be nice to be a liberal justice, and just hold firm in your political beliefs, vote accordingly, and hope a Conservative "feels bad" about the potential outcome, and decides to join you in your vote, so as to make everyone "feel" better about the Court.

I'm sure that's an argument that would sway a guy like Roberts.

 

This is what I think is going to happen. They don't touch commerce. The don't have to.

 

You keep ignoring the fact that, again, the default position is that major Congressional legislation is upheld. The conservatives would be bucking the trend by invalidating the law.

Here is a case, a PATRIOT Act case, that John Paul Stevens joined a conservative majority on:

http://en.wikipedia.org/wiki/Holder_v._Humanitarian_Law_Project

I don't know if Stevens cared about legitimacy or not, but it was a politically radioactive decision in which a liberal judge jumped over to make it 6-3.

As far as Roberts and Scalia go, one reason they get a lot of media attention here is because people consider them wild cards that don't necessarily vote straight party line. Nobody talks about Thomas, Alito, Sotomayor, Kagan, Breyer, and Ginsburg.

It's actually a compliment to Scalia and Roberts that they are considered malleable and open-minded.

 

No matter how many times you say it, the default position is not upholding legislation that's unconstitutional. In fact, if the Supreme Court really is a supreme court, the idea that there ever is a "default position" would be ridiculous.

 

"Our case law's current ... requires us, if we can, to construe, not condemn, Congress' enactments." - United States v. Skilling (2010).

"Strong presumptive validity ... attaches to an Act of Congress." - United States v. National Dairy Products Corp. (1963)

 

YF, what you don't seem to grasp is that Roberts would be doing this to protect the Supreme Court's brand.

 

Brand. Lol.