The debates about Chief Justice Roberts’s motivations for his health-care opinion rage on with new leaks appearing almost every day. Randy Barnett responds to Jonathan Adler’s attempt at showing that Roberts’s opinion is quite consistent with his past judgments:
But this does not [make] his bending himself into a pretzel to uphold a law when the screws were put to him any less political. [..] 8 justices acted on principle: 4 on good principles and 4 on bad principles.
For years, conservatives have articulated a clear legal philosophy to guide their beliefs about the proper role of the courts and the way judges should arrive at their decisions, much clearer than the philosophy liberals espouse. They said they supported "originalism," whereby judges would simply examine the Constitution as the Founders understood it to guide its interpretation today. They said they opposed "judicial activism," wanting judges to simply interpret the law instead of making their own laws. Liberals always replied that these ideas were a disingenuous cover for something much simpler: conservatives just want judicial decisions that support their policy preferences. They see whatever they want in the Constitution, and define "judicial activism" as nothing more than decisions whose outcomes they don't like.
The reaction to Chief Justice John Roberts joining the Supreme Court's four liberals to uphold the Affordable Care Act shows something revealing about the conservative perspective on the Court and the law. Despite all the time they've spent asserting that the decisions they like are based only on principle, they seem incapable of even considering that a decision they didn't like could possibly be based in anything other than politics. Could John Roberts have sided with the liberals because in this case, he decided that they were right? Oh, come on, they reply, who are you kidding?
Jan Crawford has a blockbuster story in which two sources confirm what many people inferred from the structure of the opinions—that Chief Justice John Roberts initially voted to strike down at least some parts of the Affordable Care Act before switching his vote. The story reveals some interesting things about Roberts and the Supreme Court, although we should also be careful about taking all the claims at face value given that they clearly reflect the positions of justices and/or clerks with an ax to grind.
Xavier Alvarez got twin pieces of good news Thursday. First, thanks to the Court’s decision in the Health Care Cases, Medicaid in California may soon be funded to supply mental-health services to crazed compulsive liars like him. Second, and of more immediate interest to him, he won’t be doing a year in the federal slam for falsely claiming to have won the Congressional Medal of Honor.
Given the very strong likelihood that the centerpiece legislation of the Obama administration would be struck down in its entirety, yesterday's decision upholding the Affordable Care Act seems to most progressives like both a relief and a major political victory. But was it actually a legal victory when you examine the opinions closely? Tom Scocca says no:
For months before today’s announcement of the Supreme Court’s decision in the Health Care Cases, the conventional wisdom had centered on two things: (1) The vote would be 6-3; and (2) Chief Justice John G. Roberts would write the opinion. Roberts would jump the way Justice Anthony Kennedy jumped and then write the opinion to shape doctrine for the future.
The oral arguments earlier this year on the SB-1070, the infamous Arizona immigration law, made it difficult to read how the Court was going to rule on most of its provisions, although the Court seemed on balance more sympathetic to Arizona's position. Given how things looked after that, today's decision in Arizona v. United States must be considered a pleasant surprise.
Over at the New York Times, Ross Douthat has a mostly excellent take on the Wisconsin recall and what it means for American politics. The short story is that economic distress will result in a zero-sum politics, where both sides vie for the greatest gains while doing as much as possible to block their opponents. He exaggerates the extent to which this is true on the Democratic side—Democrats haven’t pushed laws to keep Republicans from voting, nor have they used legislation to attack core GOP constituencies—but the point is well taken.
Arizona Secretary of State and certified nutball Ken Bennett
Astute readers may have noticed that over the past year or so, I've made an effort not to be too knee-jerk about my partisanship. Not that I've changed my beliefs about any substantive issues lately, but I've tried to be as thoughtful as I can about people on the other side, whether it's conservative writers or conservative politicians. I don't always succeed (the occasional insult still filters through now and then), but I'm doing my best. And I understand that writing about how the other side is evil can be satisfying. It's also popular; I've written or co-written four books, and the most partisan one sold the most, even though it's not a book I'd have much appetite to write again.
That being said, there are times when it isn't enough to say that conservatives are wrong about a particular matter. Being truthful requires saying that many of them are, in fact, nuts.
One of the many striking things about the Supreme Court's infamous Citizens United decision is how poorly the facts of the case fit the extremely sweeping holding. The potential First Amendment issues involved with campaign finance regulation exist on a spectrum. Political editorials, even when published in corporate-owned media and attempting to influence the campaign, are obviously "pure speech" that can be restricted only in extraordinary circumstances. Direct donations to candidates, on the other hand, are further removed from pure speech and also raise serious problems of democratic equality, so the leeway that can be given to government to restrict them might be greater.
This morning, Mike Allen lamented the loss of Indiana Senator Dick Lugar with—predictably—a complaint about partisanship on both sides:
Look at the two Blue Dogs who lost primaries in Pennsylvania last month, plus the Lugar result, and the quick extinction of moderates in both parties over the past decade, and there is one inescapable conclusion: This town could get even more ungovernable and polarized in November.
It’s taken me almost my entire life to come out of the closet as a liberal. In college at the end of the 1970s, I was no revolutionary, but I thought of myself as a radical. Working at “the independent socialist newspaper” In These Times in the 1980s, I tried on actual socialism, with some relief at having a name for what I thought I believed. Later I became a progressive, when that term came to stand for the Paul Wellstone-Howard Dean “Democratic wing of the Democratic Party.”