So, now that the dust has settled a bit, and I’ve had more time to digest the decision handed down by the Supreme Court, here’s my current thought about this.
John Roberts has legislated from the bench in the name of stopping legislating from the bench.
The ACA that came out of the Supreme Court is different than the one that went in. The fundamental legal argument embedded in the law and put forth by the law’s attorneys has been summarily rejected. But instead of throwing the law out based on that fundamental constitutional flaw, Roberts moved heaven and earth to find some way to MAKE the law “constitutional” and in doing so he completely rewrote the legal basis for the law in such a way that the writers of the law are still adamantly denying that legal basis.
Furthermore a key provision of the law, that of holding states hostage through withholding Medicaid funds, has been rewritten as well.
At first I couldn’t decide if Roberts was a genius for this approach or an idiot.
I’m moving more and more towards idiot.
It is hard to avoid the conclusion that John Roberts put concern over the reaction of hyper-partisan liberals to a decision they disliked over actual respect for the constitution itself.
I can only imagine how thoroughly disgusted Scalia and Thomas must be. My biggest fear now is that they will see no reason not to retire after Obama is re-elected.
Because right now the odds of Obama being re-elected have increased by double digit percentages. And for that you can thank John Roberts.
22 users commented in " Obamacare: Judicial Activism in the name of Judicial Restraint "
Follow-up comment rss or Leave a TrackbackLet’s just say that I disagree. No, I’ll go further: I believe you’re dead wrong on just about everything you said in this post.
But I’ll stop there, this being your house and all.
Go ahead and tell me why Boyd, I’m not that sensitive. Maybe I’ll learn something.
I think you presume to understand much more than you actually understand, especially when it comes to the integrity, motivations and scholarship of the Chief Justice.
Not that I necessarily agree with the opinion he wrote in the ACA case, but I also recognize that the amount of information that I actually know and understand in this case is minuscule compared to what I don’t know.
I agree with Boyd. I’ll write more when I’m not sitting in the parking lot at Trader Joe’s…
I’m looking forward to it.
FWIW, my opinion here is shared by quite a few quite well respected conservative commentators, including Charles Krauthammer.
Plus, just as I feel free to presume what I like about President Obama or Cher, Justice Roberts is a public figure and I am also free to presume what I like about his motivations.
You may disagree if you like, but there is nothing untoward in my attempt to fathom the motivations of his actions and comment on them.
Dadman and Boyd, I would love to hear your analysis on this seeing as how CBS just ran a story essentially saying that what I wrote above is pretty much absolutely correct.
According to that story Roberts originally wrote the majority striking down the mandate and then switched sides after heavy pressure from the Obama administration, the media and many “legal scholars”. Even CBS presumes he did so based on pressure from the media.
I find this quote from CBS quite interesting:
Or to put it another way, they are saying that Roberts was engaging in activism in the name of restraint. EXACTLY what I am saying.
Still waiting for your side on this.
Until something convinces me otherwise, I am sticking with my conclusion that John Roberts has screwed the conservative movement and skewered the constitution in a vain and self-serving attempt to save his reputation from being savaged by hyper-partisan leftists in the press and in academia.
The lines were really long at Trader Joe’s.
I should clarify what I disagree with. You, and CBS, may be right about the motivations of John Roberts. I just don’t know given my personal challenges with clairvoyance. Over the past few days I’ve heard Roberts described as both a traitor and a genius by those on the Right. And, of course, the Left is delighted with his ruling. All I know for certain is that I’m not thrilled with his ruling.
What I do specifically disagree with is your political calculus. I just don’t see how this ruling increases Obama’s re-election chances by “double digit percentages”. This ruling has been described by some as a Phyrric victory for Obama and I believe there is some truth to that description.
Let’s break it down by voter types.
Republicans are certainly no less likely to go to the polls and vote against Obama in November because of this ruling. Logically, it will have just the opposite effect given that voting Obama out of office is now the only path to abrogating Obamacare. So, to the extent Republicans and conservatives were not energized by Romney’s candidacy they are now energized by this issue. Advantage Romney.
Independents are a tougher call. We do know that independents were already trending toward Romney and Romney has been promising the repeal of Obamacare since day one. It doesn’t seem likely he’ll lose any independent votes as a result of this ruling. We also know that Obamacare is already an unpopular piece of legislation so it is conceivable that some independent fence-sitters will be persuaded to vote for Romney based solely on this issue. But, some independents might decide to vote for Obama to preserve Obamacare. This feels like a wash to me and maybe a slight advantage to Romney.
Democrats and liberals were not going to vote for Romney anyway so I don’t see how this ruling translates into a significant number of additional votes for Obama. As I’ve said before, a repudiation of Obamacare by the SCOTUS would have REALLY energized former Obama voters to ensure the Immaculated One received another shot at nationalized healthcare. I get the sense that the Obama campaign just wants to move on from this ruling as quickly as possible and not talk about it anymore. Feels like a Phyrric victory.
Ultimately, I think this ruling works in Romney’s favor (assuming he effectively seizes the opportunity) by re-igniting some passion in the ranks of the Tea Party, the conservative base, and those that just don’t like Obamacare (which is the majority of Americans). Those that didn’t want to vote for Romney and were threatening to stay home on election day will now have the opportunity to vote against Obamacare by voting for Romney.
We’ll see…
Dadman, I hear a lot of people saying that this is a “Pyrrhic victory” for Obama. I don’t believe it for a moment.
And, as with most things I predict, this is totally testable. We’ll see what happens to Obama’s poll numbers over the next few days as the ruling is rolled into the weighted averages. We’ll see what happens to Romney’s numbers.
Two days after the ruling the daily Rasmussen likely voter poll gave Obama his first lead in almost a month. Today they are tied. The day before the Obama ruling Romney held a five point lead.
And the fallout on this has just begun.
Liberals will quite successfully paint conservatives as sore losers. They will focus on the law being constitutional and will literally laugh at the notion that it is a tax.
I’m afraid I have a very poor opinion of the American public. I doubt one in five really understands the distinction between a tax and a penalty, and I agree with Charles Krauthammer that it actually doesn’t matter in the long run.
I hope you are right. I hope Romney still has a chance.
I’ve been wrong before. I predicted a Gore victory over Bush. So hopefully I’m wrong this time too.
But I will say this. There is nothing I see from this SCOTUS decision that I believe helps Republicans in the slightest. It is a huge, debilitating and historic defeat. And all the more debilitating because it was handed to us by a man who should have chose more wisely.
Yes, I admit it. My opinion of John Roberts has suffered a serious, and perhaps fatal, blow. This was not some minor court case that Roberts could use to make a point. This was a hill that conservatives desperately needed to hold. This wasn’t just a battle. This was a war.
And we lost.
It seems you’ve completely ignored my analysis. Granted, I’m making a lot of assumptions, but I don’t understand how you can completely disregard the argument that this energizes Republicans, conservatives, and the majority who do not like Obamacare while having a dubious impact on those who were already going to vote for Obama. It seems like you’re judgement is being clouded by your new-found distaste for John Roberts.
At worst I think were looking at a wash in terms of impact regardless of what polls may indicate in the next few days. The only poll that really matters will be taken on November 6th…
I guess you’re arguing that a significant number of swing voters will be swayed to vote for Obama as a result of this ruling.
Maybe. But I think impact with swing voters will be negligible…
I suppose it’s fair to say I “ignored” your analysis in the sense that I didn’t address it directly. I’ll do so now.
For every de-motivated conservative, this ruling will motivate a liberal. I read the Lefty blogs, I can tell you that they are frothing at the mouth over this. If you think they aren’t energized, well, let’s just say I disagree.
The “majority” who don’t like Obamacare is a 60/40 split, which is a significant, but not overwhelming majority. That number is already shifting to be more even because of this ruling.
There are a lot of independents who were waiting for the Supreme Court’s ruling on this, and now they are concluding that the law is constitutional after all. I predict you will see Obamacare’s approval numbers climb steadily over the next few months. Especially as the narrative becomes more and more about the law being constitutional and less and less about it being a tax.
At worst I think this is a huge net positive for Obama, and a weak campaign issue for Romney. He might be able to make some hay about the tax increases, but with the full weight of the media against him, I’m afraid that will be a tougher sale than most conservatives think.
Most people only take one thing away from major events like this. That’s why it’s called a narrative. And the narrative on Obamacare will be that it was controversial but ultimately ruled constitutional. The fact that it was sold to the USA on false pretenses and ruled constitutional in a manner that its own writers and political supporters deny will be lost in the daily political shuffle.
Right now the Fast and Furious scandal is Romney’s best hope to gain ground on Obama. Republicans better get on that and start running with it for all it’s worth. It’s orders of magnitude more evil than Watergate was, and I believe it has Obama’s fingerprints all over it.
If you want my opinion, based on Boehner’s and Issa’s comments today, they are aware of that and are moving to try to change the debate from Obamacare and into muderous malfeasance and ideological criminality in the DOJ.
That might still be a winner for Republicans.
But Obamacare is, imho, not.
Well, I disagree for the reasons I’ve stated. The ruling on Obamacare is at worst a wash and likely a modest advantage to Romney in what remains of this election cycle. You want to talk about narratives, try the narrative of an imperial president and an over-reaching federal government forcing enormous mandates/penalties/taxes on the American people against their will and consent. That’s a compelling narrative and one that has already become a main theme of Romney’s campaign. This ruling will just add credibility and urgency to that theme.
I believe that sooner or later Obamacare will either be repealed or significantly modified, in spite of this disappointing ruling. Its unsustainable costs and pernicious unintended consequences will, in time, force such an outcome…imho…
Dadman, I don’t disagree with any of your analysis of what Obamacare is, or what impact it will have on the financial basis of this country.
Where you and I are not seeing eye to eye is the political and cultural impact.
If being unsustainable and financially destructive were critical political and cultural issues, Social Security, Medicare and Medicaid would have been repealed or significantly modified years ago. The fact that they have not been modified (in fact they have been called the “third rail of American politics”) is not because they are wise, but because they give people free stuff and therefore provide politicians with a way to buy votes.
That’s precisely what Obamacare will end up doing.
I wish I could agree with you that the voters of this country will look around and say “Oh crap! This can’t go on!”
But that does not seem to be consistent with history. People will not do anything about the unsustainable financial situation until it causes them more pain to live WITH it than it does to live WITHOUT it.
And right now, that is not the case.
Your entire approach to this assumes that the nation, the culture and the voters are rational, intelligent, forward-thinking people.
All evidence I have seen my entire life is entirely to the contrary.
You’ve shifted the discussion. I think we do see eye to eye on the potential impact of Obamacare on our country. If it is not repealed or significantly modified it poses, like other unsustainable entitlement programs, an existential threat to life as we’ve known it in America.
We were talking about the SCOTUS ruling and whether or not it accrues an advantage or disadvantage to Romney’s chances to win the upcoming election.
I’m arguing that Republicans, conservatives, and many other Americans (swing voters who already don’t like Obamacare) will be energized by this ruling to the advantage of Romney’s candidacy. These voters know Obamacare is an existential threat and they know defeating Obama in November may be their last chance to change course. You see it working to Obama’s advantage.
I am hopeful the war is not yet lost…
To be clear, the advantage I see for Obama is mostly in the loss of a potential advantage for Romney. Had the law been overturned I think the chaos would have been substantial, and the blame for all that chaos would have been rightly pinned on a President and Congress that wrote and pushed through an unconstitutional law. By finding some narrow and, imho, implausible way to make it “constitutional” by calling it a “tax” the law will move forward and all that chaos is averted. So consider the “benefit” I accrue to Obama to be mostly in the form of lost benefit to Romney.
I think people greatly underestimate the chaos overturning Obamacare would have created.
I don’t know why I’m even so disgusted with this whole thing. I think the war was lost when GW Bush tried to revamp Social Security and the Democrats pretty much destroyed his Presidency over it.
There is no way this country is going to right it’s financial course until the pain is such that the public demands it.
And that ain’t gonna be for a while, and by the time it does, it’s likely going to be too late to avoid some serious, life-crushing shit to fall on our children and grandchildren.
Yeah, I’m not what you call an optimist. I think the America I knew has collapsed under the weight of the unintended consequences of misguided good intentions coupled with the raw and unbridled search for power by our elected officials.
Pretty much everything Washington and Jefferson warned us about has come to pass. It’s all over but the crying and bleeding now.
Well, it looks like the Romney campaign also agrees with me. They are passing on calling the revenue a “tax” and are adopting the “penalty” language that Obama uses. Clearly they don’t think the “tax” angle is a winner for Romney.
Personally I think the attempt to paint it as an “unconstitutional” penalty is a waste of breath, but that’s where they are going.
It’s a political calculation based his experience with Romneycare in Massachusetts and the risk of being labeled a hypocrite.
Personally, I don’t think it matters if it’s labeled constitutional or unconstitutional. Just labeling it an onerous federal penalty or mandate that will be ENFORCED by 16,000 new IRS agents is enough to get the hackles up on a lot of voters. Romney should be able to make that case effectively…
I believe this will just play into the “conservatives are sore losers” narrative. “Unconstitutional, what are you talking about? The SCOTUS just ruled it was constitutional!”
That’s all the Dem talking point needs to be. Any further questions on the “tax” vs “penalty” question will simply be laughed off as meaningless.
You seem to be forgetting that the majority of Americans didn’t like this law before the SCOTUS ruling. What’s changed? Well, it is now clear to a lot of voters that the only way to repeal or change Obamacare now is by voting Obama, and hopefully a good number of Dem senators, out of office.
BTW, I still think Romney’s chances of success in this campaign are at best 50-50. I just believe this SCOTUS ruling likely helps him more than it hurts him…
You may have something there Dadman. Fox is reporting that Obama has not received a bounce. They are mixing and matching Rasmussen and Gallup results to show that, and ignoring that Romney was up 5 in Rasmussen before the decision was handed down…
But…
It is true that Rasmussen has Romney back up by two today.
Maybe I’ve over-estimated the impact. I hope so. But I suspect this is just noise in the polls for now.
Probably beating a dead horse here, but here’s another editorial attempting to explain (better than I did) how John Roberts REWROTE Obamacare in his opinion. This is from The Washington Examiner:
Again, I stand by everything I wrote in this post. I think I not only got it RIGHT, I got it right FIRST. My comment was made before the CBS story, before Charles Krauthammer and before this editorial.
Roberts was bullied into changing his vote. He rewrote the law to make it work. He did so, IN MY OPINION, strictly to try (in vain) to protect “his courts’” reputation after being attacked viciously by Obama, academia and the media.
Frankly I think Roberts should resign.
[...] it a few nights and had contemplated what could possibly have led to the outcome I saw, I published this blog post describing what I thought of the decision, how I thought it had happened, why I thought it had [...]
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