Posts Tagged ‘John Roberts’

Obamacare Supreme Court Primer

Tuesday, March 27th, 2012

Here’s Ezra Klein and Sarah Kliff with everything you need to know about health care reform’s Supreme Court debut.

They provide some good links to analysis of the case. It looks as though most scholars seem to agree that, whether you like the individual mandate or not, there is a ton of Supreme Court precedent that supports the ability of Congress to enact a law like this. The Commerce Clause in the Constitution gives Congress the ability to regulate interstate commerce, and as Bloomberg View puts it

The question is what qualifies as interstate commerce. For most of the second half of the 20th century, the answer has been clear…pretty much anything.

Is a farmer growing wheat for his own consumption engaging in interstate commerce? Yes. A small restaurant in Alabama refusing to seat blacks? Yes. A sick Californian growing her own medicinal marijuana, as allowed by state law? Yes. And so on.

and if these cases are considered appropriate use of the Interstate Commerce Clause, then certainly a requirement that is central to controlling the cost of an industry that accounts for 18% of the economy qualifies as well.

And lest you are tempted to cite the Founding Fathers to denounce requiring purchase of a private good, you would be wise to remember that George Washington signed a bill in 1792 mandating that all free men purchase a gun (Big Government indeed).

Perhaps the most interesting take on the Supreme Court’s decision comes from Dahlia Lithwick, who predicts that the Justices will stay away from a narrow decision striking down the law and keep their powder dry for the upcoming battle to dismantle the Warren Court’s legacy:

They will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market…. And then—having been hailed as the John Marshall of the 21st century—he will proceed to oversee two years during which the remainder of the Warren Court revolution will be sent through the wood chipper.

Lithwick’s analysis sounds about right to me. Say what you will about John Roberts, but you have to admire his ability to smile politely and show the world a reasonable disposition while he works behind the scenes to radically alter the rules of the political system that Americans have come to understand them in the modern era. 

I say he and his team pass on this one so they have a freer hand when the eyes of the country aren’t focused on them.

Enlarging the Strike Zone

Saturday, July 10th, 2010

The seeds of the Reagan/Bush years are finally coming to fruition.

Chief Justice John Roberts, in his confirmation, famously likened the job of the Supreme Court to that of a impartial umpire, calling balls and strikes. If the results of the Court’s last term are any indication, a better metaphor for what Roberts is doing is enlarging the strike zone while the monied interests are pitching against the American people.

As then Senator Barack Obama noted during Judge Alito’s conformation hearings, Alito, as a federal judge, had “consistently side(ed) on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.”

Now that Alito has joined Roberts, Scalia, Thomas and Kennedy on the court, it’s becoming clear what the real world consequences of that worldview are.

It’s also shown the hollowness of the Republican arguments against “judicial activism.” For years they used that term as a sword against liberal justices, but the Citizens United case is every much as judicial activist as any of the Warren Court’s decisions. The only difference is that the Roberts court’s judicial activism is creating new rights for corporations while it whittles away at the rights of individuals on the margins.

Unfortunately, the nomination of Elena Kagan is unlikely to change that dynamic. Aside from not altering the liberal-conservative math, Kagan’s nomination seems to be part of an existing pattern of Republican presidents generally picking young, strong conservatives on the Supreme Court while Democratic presidents pick candidates from the center left.