John Roberts’ Sits Still

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56 Responses

  1. Avatar Herb says:

    Not bad, but a couple things:

    A) “for the bill would not survive a Romney landslide that had considerable congressional coattails”

    The bill would not survive a massive sun flare, a zombie apocalypse or a nuclear strike, all of which are just as likely to happen as a Romney landslide much less a landslide with considerable congressional coattails.

    B) “One way or the other, the future of the ACA will be decided by elections and legislation, which is how it should be. ”

    I think it’s time the right in this country finds a new project. This one went through all three branches of government relatively unscathed. Time to move on. Finally. Please?Report

  2. Avatar Mike Schilling says:

    I’d like to relay some advice I was given back on 12/12/00:

    You lost. Get over it.Report

  3. Avatar Anderson says:

    “However liberal/progressive the law was itself, the ruling hardly indicates – to borrow from Dennis Green – that John Roberts is not who we thought he was. On the contrary, there may come a time when conservatives celebrate, and liberal rue, this as a landmark decision limiting federal powers.”

    Like the long-term view here. What are some other examples of cases where the long-run holding had a markedly different effect than the short-term politics? Marbury v Madison comes to mind, where John Marshall helped his political opponents Madison/Jefferson against Adams, but also established judicial review. Others?Report

  4. Avatar karl says:

    (1) Yes, John Roberts is who he is always was — a savvy conservative. That he is suddenly being vilified by many on the far right exposes (once again) their petulance; that he is suddenly embraced by some on the center-left exposes their dog-like desperation to lick the hands that beat them when the beating stops.

    (2) A quibble: the Right to Privacy was discovered in Griswold, not Roe. Does that, considering the particulars, make it any less “infamous”?Report

  5. Avatar Michael Cain says:

    Federal dollars are a large piece of state budgets. When I worked as a legislative budget staffer, one of the key parts of my job was understanding all the strings that came with the federal dollars in my part of the budget, and how they were interrelated. This decision — that some strings are unconstitutional — opens a heck of a can of worms. What future sets of strings can be challenged? Heck, what existing strings might be challengeable?

    If I were Attorney General in a conservative state, I might be willing to take a run at unemployment insurance. The threat is higher taxes levied on all businesses in the state if the state doesn’t run a conforming program. The statute says that the federal Department of Labor will run a UI program if the state does not do so, but the Department is completely unprepared to actually do that. Clearly, the feds believe the threat is heavy enough that states have no choice but to operate a program, which is what got the Medicaid expansion in trouble.Report

    • Avatar Anderson says:

      Not to mention the health exchanges as well, it honestly seems absurd to think that HHS will create competent exchanges for all the states that don’t.Report

    • Avatar Rod says:

      I was wondering that, too. Like if “you don’t set your DUI blood-alcohol cutoff at or below a certain point you lose your highway funding.”

      That could have vastly more far-reaching consequences than even the Commerce Clause bit.Report

      • Avatar Morat20 says:

        Roberts ruling was a “can’t tie past funds to new rules and new funds”, so not really.

        Especially since it’s trivial to get around. Scrap old program, make new one with new rules that contains the old stuff. Ergo, brand new program that states can take or leave.

        Frankly, I don’t see that decision lasting.Report

        • Avatar Kimmi says:

          or… it means the feds can NEVER EVER end money that they gave to the states, with a new law. (not sure what it means about repealing existing laws)Report

    • Avatar Stillwater says:

      but the Department is completely unprepared to actually do that.

      Are you suggesting that the constitutionality of federal regulation of UI programs depends on whether or not the Federal government is sufficiently prepared to – rather than capable of – to admininster(ing) the program? I think that would be an odd argument for the constitutionality of the law, don’t you? Or am I not understanding you?Report

  6. Avatar ThatPirateGuy says:

    Time for some real talk.

    Does anyone believe that any of Roberts language will matter if my preferred president is re-elected and gets 1-2 more supreme court picks?

    Anyone? The same is true if his opponent wins does anyone believe precedent will restrain Romney’s appointees?Report

    • Avatar Jaybird says:

      Outside of the First Amendment, when was the last time the Supreme Court actually found a law Unconstitutional? DC’s handgun law, I think. Before that?

      I honestly don’t know.

      The Supreme Court seems to be doing a good job of saying “well, you *CAN* pass that law… you just need to use *THIS* justification instead of *THAT* justification” when they aren’t saying “sure, you can pass that one”.Report

  7. Avatar Snarky McSnarksnark says:

    Well, there is that whole McCain-Feingold thing…Report

    • Avatar Jaybird says:

      Given that the government argued before the Supreme Court that the law was not only broad enough to prevent people from purchasing movies but also that the law could ban books, I had it categorized as a First Amendment issue. Should I have instead categorized it as “necessary and proper”? “General Welfare”? The power to tax?Report

      • Avatar ThatPirateGuy says:

        My understanding is that the main criticism is not that the basic case was decided incorrectly but that they took a narrow issue and struck down all restrictions on corporate campaign spending.Report

        • Avatar Jaybird says:

          Spending, on what? Speech? The Press?

          It does seem vaguely odd to me that the government could say “sorry, you can’t buy an ad in Newsweek”… I mean, I can easily imagine justice departments from living memory that I wouldn’t want making that call. “You can’t buy an ad saying ‘vote for me'”?

          Heck, limits on donations tied to lobbying makes more sense to me than the government telling people they can’t buy an ad.

          How am I looking at this incorrectly?Report

          • Avatar Jaybird says:

            Here’s an interesting take on the same topic:

            Dish Network came out with a new DVR called “The Hopper”. It lets you skip commercials on the stuff you’ve recorded. The Communications and Technology Subcommittee of the Energy and Commerce Committee held a hearing in which the Dish folks were questioned about this. Why? Because people would also be skipping Political Ads… including Ads pushing for the re-election of the dudes on the committee.Report

            • Avatar Stillwater says:

              “The Hopper potentially limits the ability of every member of this subcommittee to reach constituents to help them make up their minds on Election Day. Do you understand and appreciate the concerns that the politicians up here on the dais and other politicians everywhere will feel about that, yes or no?” Dingell asked.

              I hope this was his best effort at fronting for the advertising lobby and not … what it appears to be.Report

          • Avatar ThatPirateGuy says:

            My question is what is the meaningful difference from donating to CROSSROADS GPS and donating directly to the republican party?

            Is it too much to ask that CEOs not be allowed to redirect their corporations money into their pet political causes? I would like to be able to order a pizza without feeling like I am donating to the Romney campaign.

            If the CEO of Papa Johns wants the GOP to get money why can’t he use his money instead of the companies? That is what I don’t get.Report

            • Avatar BlaiseP says:

              You see, voter registration requires ID but donating to CROSSROADS GOPS doesn’t.Report

            • Avatar Jaybird says:

              My question is what is the meaningful difference from donating to CROSSROADS GPS and donating directly to the republican party?

              So, I break this question down into two (or four, really) questions:

              What do you get from donating to the Republican Party?

              What do you get from donating to Crossroads GPS?

              What is the Republican Party able to do with the money that it otherwise would not have been able to do?

              What is Crossroads GPS able to do with the money that it otherwise would not have been able to do?

              I do not know the answer to these questions *BUT*! that’s not going to stop me from speculating on the answers.

              The answer to the first two seems to be that it will get your name put on a list that will have very close attention paid to it by people who pay very close attention to the names on donor lists. Perhaps it will also give you access to a congressperson and you can have a conversation with them.

              The answer to the last two seems to be “they will use the money to buy even more ads.”

              But, as I said, I don’t know the answers to the four questions but… given those answers, I’d have to say that there doesn’t seem to be any meaningful difference at all.Report

              • Avatar ThatPirateGuy says:

                Ok so based on your perception that there is not much difference between the two is it not strange that a corporation can give unlimited money to one and no money to the other?

                I consider it unusual. I worry that such donation structures with secrecy will combine poorly with “privatization”.Report

              • Avatar Jaybird says:

                I’m one of the guys who would want transparency above all.

                If Pepsi donated $1,000,000 to the Democrats and this ticked me off, I could send a letter that said “Dear Pepsi, I am an ignorant teabagger who can barely type duh duh duh, I will buy coke unless you stop supporting Democraps, I have to drink something because meth makes me thirsty and I will drink your competitor because I am a hypocrite. Warmest Regards, Average Republican”

                If Pepsi donates $1,000,000 to American Dreams Foundation (or whatever), there’s obfuscation there.

                Better to let it all hang out. I suspect that sunlight will keep it a lot more honest than yet another lobbying law written by lobbyists.Report

              • Avatar ThatPirateGuy says:

                What I find truly crazy is that under the current system Pepsi could donate to American dreams superpac and no one other than the people that run it and the politician who benefited would ever know.Report

              • Avatar BlaiseP says:

                Back in the days before the Taft-Hartley Act, corporations and unions could make unlimited donations to political campaigns. They are again. We can again expect the same troubles which led to Taft-Hartley enacting that ban.Report

              • Rising unionism?

                Taft-Hartley is, in my view, one of the single most repugnant pieces of legislation still in existence. Anything that chips away at that legislation is an uncontroverted good, IMHO.Report

              • Avatar BlaiseP says:

                That’s okay. I was merely observing Citizen’s United did overturn that last bit of Taft-Hartley and therefore, some decades of legislation.Report

  8. Avatar Burt Likko says:

    On the subject of Roberts remaining still while the politicos shift tables all around him:

    This is as it should be. He is a judicial officer, not a political officer. He is supposed to be above politics. He is supposed to make decisions regardless of which party or clique favors them in the moment. That movement conservatives figuratively switch lunch tables away from him speaks to their proclivities and not Roberts’. It exposes as the fiction it always was that movement conservatives truly want neutral, restrained judges — they want judges who will rule in their favor, just like the liberals do.

    It can be a lonely thing to wear the black robe sometimes. At least one-half of all the parties who come before you leave unhappy. Sometimes more.

    And conservatives who are a little bit thoughtful about things haven’t given up their admiration for Roberts. Most of them realize that the decision puts the political decision of the viability of PPACA back in the political sphere. Which is where it belongs in the Constitutional scheme of things in the first place, and where they can at least potentially use it to their advantage.

    Thesis: while there may be some exceptions, as a general rule and as compared to American liberals, American conservatives are neither very good at nor very comfortable with acheiving their policy agendas through the courts. Thoughts?Report

    • Avatar Morat20 says:

      Thesis: while there may be some exceptions, as a general rule and as compared to American liberals, American conservatives are neither very good at nor very comfortable with acheiving their policy agendas through the courts. Thoughts?
      A comforting myth conservatives like to tell themselves?Report

    • Avatar BlaiseP says:

      After the Bork debacle, the Conservatives decided to put their effort into installing Conservative justices to the SCOTUS bench. They don’t need court cases. The Liberals will provide them grist for the mill.Report

    • Avatar Stillwater says:

      I chalk it up to the fundamental incoherence of conservatism. They generally don’t even know what they’re arguing. It’s primarily based on a rejection of what is the case without any affirmative argument for what ought to be the case.

      Other than that what is the case ought not be.Report

      • Avatar Stillwater says:

        Tho, from what I can gather from various conservative’s take on Robert’s opinion, they seem to think it gives conservatives more tools to actually argue coherently about what ought to be the case.Report

      • Avatar Stillwater says:

        And actually one last comment on that thesis (since it’s actually quite interesting): the way it’s phrased, it suggests that American conservatives are more comfortable with achieving their goals thru the legislative process. If that’s the inference, then I disagree with that as well. Conservatives are comfortable only with winning policy battles, which can be functionally defined as “defeating Democrats”. I don’t think they particularly care how that happens – thru legislation or via court decisions, or even by engaging in voter-fraud campaigns to restrict the ability of Democrats to register new voters, or make it harder for them to vote, etc and so on.Report

    • Avatar Tod Kelly says:

      I disagree with that thesis. I would argue instead:

      American conservatives do not like to lose, and over the past few generations they have seen themselves losing too many of their litmus-test cases in court for their liking.

      I have yet to see a court ruling in their favor that AMerican conservatives treat with contempt.Report

    • Avatar MikeSchilling says:

      Citizens United, McDonald, and Bush v. Gore seem to me to be whopping examples of conservatives happily acheiving their policy agendas through the courts.

      I’d change the thesis to this.

      American conservatives have such a sense of resentful entitlement that:

      Any court decision that defeats their policy agenda is ipso facto a betrayal of the Republic and the Constitution.

      Any court decision that advances their policy agenda was obviously correct all along and a piss-poor substitute for overturning all prior decisions going back (at least) to the Hoover administration.Report

      • Avatar MikeSchilling says:

        And given the strategy, going back to the Clinton Administration, of blocking as many Democratic nominees as possible, while Republicans nominate ten-year-olds for lifetime appointments, it seems very odd to claim the Republicans don’t see the courts as a major political battleground.Report

        • Avatar Burt Likko says:

          The thesis was not that Republicans don’t see the courts as a major political battleground. The thesis was that they are basically uncomfortable and inept at achieving policy goals within them. Seems to me that they want conservatives on the bench not to advance conservative policies, but to prevent those policies from being overturned in impact litigation.Report

          • Avatar Stillwater says:

            Seems to me that they want conservatives on the bench not to advance conservative policies, but to prevent those policies from being overturned in impact litigation.

            I think there is a strong undercurrent, which often expresses itself as an overcurrent, that if the SC were comprised of sufficiently conservatives Justices, they would unhesitatingly overturn lots existing 20th century legislation as being transparently unconstitutional. So I think they do derive some comfort in the thought of advancing their policy goals via the Court.Report

          • Avatar Morat20 says:

            There are three basic types of conservatives when it comes to the courts:

            1) Those that think the CRA was unconstitutional.
            2) Those that think the New Deal was unconstitutional
            3) Those that think Roe v Wade (or perhaps even Griswald) were unconstitutional.

            They have never gotten over whichever issue (or all three) have irritated them. Not in decades. They keep hammering into those, over and over, and getting slammed back.

            So they think the courts are against them, because those are three giant liberal ‘wins’ that ended up in the courts and conservatives lost. And kept losing. For decades. No matter what laws they tried, what judges they nominated, what they did…it still stayed firmly Constitutional. Even though it’s blantantly (to them) NOT.

            However they’re just as quick to run to the courts as liberals if something they don’t like makes it into law.

            Frankly, it’s just an expansion of the fact that modern conservatives seem to view Democrats as ‘illegitmate’ from th get-go. Court wins for liberals are judicial activism and not real rulings. Court wins for conservatism are how it should be.

            Call it “white man’s privilage” in the courts. The default is ‘conservative victory’ and everything else is somehow wrong.Report