It seems to me that several conservative columnists, including George Will, are essentially taunting Chief Justice John Roberts. They keep saying that Roberts will never be so weak as to uphold ObamaCare. They don’t say these things about Justice Kennedy, which is strange because the conservatives need both Roberts and Kennedy to vote against ObamaCare if it is going to be ruled unconstitutional. I kind of feel like they are worried that they’ll lose this decision in a 6-3 vote, or worse. Before I heard the oral arguments, I figured the decision would be 8-1 to uphold the individual mandate. Clarence Thomas would have been the lone holdout. The law and precedents are pretty clear.
But it could be that the conservatives on the Court have just been gathering strength, waiting until they had enough power and the right case to totally transform the federal government’s relationship to the states. This could be their moment. Or, maybe not. Maybe Kennedy is not on board. Maybe Roberts is less radical than he seems.
I feel like the two most likely results are a 6-3 decision to uphold, with Thomas, Scalia, and Alito dissenting, or a 5-4 decision to strike down the mandate, with all the liberals dissenting. I don’t see a scenario where Kennedy votes to strike the mandate but Roberts saves it.
That’s why I think George Will’s premise is stupid. But maybe he doesn’t want the embarrassment of losing this case by more than a 5-4 split.
Boo — have you read the recent New Yorker piece on Roberts influence on the Citizen’s United case? Its apparent that overturning precedent is not much of a problem for him. He is a fairly radical conservative judicial activist. After reading the oral arguments, If I had to bet, I would bet 60-40 that the entire Healthcare law will be struck down by this court, and 70-30 that the mandate will be struck down.
This is exactly where I am. Moreover, for both Roberts and Alito, their records and philosophies were perfectly clear when they were nominated for the SCOTUS, long before they testified. The fact that so many Dems rolled over, or waited to the last ineffectual moment to object to the nomination (in Alito’s case), was unforgivable at the time and remains so. We see the results. Those results may have been inevitable – Dubya was never going to nominate a moderate – but at least it could have been a teachable moment instead of reinforcing the narrative of Democratic spinelessness. That had, and continues to have, consequences.
I say all this because we’ve seen plenty of evidence that when the modern SCOTUS is handed a case that would be a political game-changer for Republicans or corporate America – as with Citizens United and going all the way back to Bush v Gore – the search is not for relevant precedent; it’s for a rationale, any rationale. A negative SCOTUS opinion not only throws the US health care system into chaos, it gives Romney a huge weapon in this year’s election, and the GOP a much better chance of controlling all three branches of government next year when it “fixes” that chaos.
I am a double organ transplant patient who’s also had three types of cancer and a stroke, and am immunosuppressed. I’m also a dual US/Canadian citizen, and SCOTUS and our fucked-up, bought-and-paid-for political system could literally force me to pick up and move back to Canada after 30 years. So if I sound scared, and pissed: yeah. Yeah, I am.
My bad – I forgot to include the possibility that in response to the Republican health care “fix,” Democrats, like the current batch of Republicans, would have the unity and stones to aggressively filibuster to block a piece of legislation that would likely be a death sentence for me and millions of other chronically ill people. It didn’t even occur to me that in such a scenario, Democrats would fight back.
Maybe that’s because for the totality of 2001-09, the Democrats had more than 40 members in the Senate, and spent a lot of that time on their backs waiting for somebody to come along and rub their bellies. When you never fight back, it stops occurring to people that you ever can, or will. And that goes for bystanders as well as the bullies themselves.
the reason it didn’t occur to you initially, is because it’ll never happen.
sad to say…but true… at the end of the day they all serve the same masters.
Before I heard the oral arguments, I figured the decision would be 8-1 to uphold the individual mandate.
Boo:
Can I have some of what you were smoking? It was never going to be 8-1. Never, ever, ever!!! If it is upheld, it will only be 5-4. You are right though that Roberts will never be the 5th vote to uphold. He’d go from darling of the RWNJ’s to mortal enemy, that quick.
I could see 6-3, maybe 7-2 to uphold the whole law. But only 5-4 at best to uphold the mandate. Never mind the argument that the law won’t work without the mandate. Practicality is not in the court’s province, or any court for that matter. What was that Southern case where an official was convicted of taking a bribe that the briber was acquitted of offering?
I get the impression, after reading through that George Will article, that he is utterly terrified that the court will affirm the law. Those were not the words of a confident man.