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You are here: Home / Politics / Activist Judges! / How Far They Would Have Gone

How Far They Would Have Gone

by John Cole|  June 28, 20124:43 pm| 40 Comments

This post is in: Activist Judges!

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The Benenator:

The conventional wisdom, which was neither conventional nor wise, was that the individual mandate was in deep trouble, but it was unrealistic to think the justices would be so radical as to kill every letter of every word of every page of the law. Such a breathtaking move would simply be unnecessarily radical.

And yet, as of this morning, four justices — Alito, Kennedy, Scalia, and Thomas — insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.

To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks — had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.

Roberts’ motivations notwithstanding, it’s important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

I’m pleasantly surprised the mandate and ACA were upheld. I was convinced Roberts would join the other four and go full metal wingnut and overturn it all. This should have passed 8-1 in a sane world, but this just shows you how reckless and dangerous this court is.

Do you trust Roe with these guys? Do you trust any law with these guys?

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Reader Interactions

40Comments

  1. 1.

    japa21

    June 28, 2012 at 4:49 pm

    The main thing that bothers me about the ruling is that it is being reported that the SC found the individual mandate to be a tax and therefore constitutional. In actuality, only Roberts used that rationale (obviously so he can continue to eviscerate the Commerce Clause) and the other 4 votes to uphold were based upon the Commerce Clause.

    Of course, now that it is reported that it is a tax (which is still sloppy reporting) it is an argument that Obama has raised evryone’s taxes. Even those that have insurance will think their taxes are being raised.

    So I am glad it was upheld, but it would have been much better if the tax aspect was left out.

  2. 2.

    ABL

    June 28, 2012 at 4:49 pm

    After listening to the oral arguments in March, I thought it would be 6-3. I never in a million years would have guessed that Roberts would side with the libs and Kennedy would side with the cons.

    But Roberts will overturn Roe v. Wade in a heartbeat. He said as much during his confirmation proceedings. Obama needs to win reelection if for no other reason than to keep crazies off the court and to protect repro rights.

    Now I’m going to drink and be merry because I DON’T HAVE TO GET BRAIN SURGERY THIS SUMMER.

    ::moonwalks out the door::

  3. 3.

    PaminBB

    June 28, 2012 at 4:50 pm

    No and no. SATSQ.

    But – I didn’t trust them before this decision. However, I am glad that Scalia haz a big sad this week.

  4. 4.

    trollhattan

    June 28, 2012 at 4:50 pm

    Do you trust Roe with these guys? Do you trust any law with these guys?

    No and hell no. After I come down from my pastel cloud of joy at the decision and Ginsburg’s concurrence, it’s back to ensuring Willard goes no further, as any SCOTUS appointments by him would have me talking like Ben Shapiro(tm).

  5. 5.

    trollhattan

    June 28, 2012 at 4:53 pm

    @ABL:

    Wow–double-good day. Congrats!

  6. 6.

    Martin

    June 28, 2012 at 4:54 pm

    but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks—had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.

    Yeah, I think had the whole law been struck down, we’d have had some serious unravelling of the nation. Most notably, it’d signal that no healthcare reform could possibly be enacted. The GOP, as sociopathic as they are, are fully aware of how dire the need for healthcare reform is. They can’t possibly sit back for long and allow things to continue – it would lead to the full dismantling of Medicare. It would kill the nation economically. So for a full strike-down, SCOTUS would effectively be saying ‘this problem cannot be fixed under this constitution’ to a problem that absolutely must be fixed. And that point would grow to such a degree that fixing the constitution would be the lesser task.

    Somewhere along the way here, that point would have to been driven home to Roberts – that a ruling along the lines of where it was headed would make the constitution itself inadequate to the nations needs, due directly to a decision that he authored.

  7. 7.

    Insomniac

    June 28, 2012 at 4:54 pm

    JC @ top: No and no.

    @ABL: Excellent news re: no brain surgery this summer. Hope your health news continues to be good and gets better. Rock on chica!

  8. 8.

    The Moar You Know

    June 28, 2012 at 4:54 pm

    Do you trust Roe with these guys? Do you trust any law with these guys?

    No. The Court nowadays is no impartial arbiter of laws, weighing arguments on their merits or lack thereof. They are “activist judges” in every sense of the word, and the last thing this country needs is an unelected legislature with lifetime tenure.

  9. 9.

    Chris

    June 28, 2012 at 4:54 pm

    “””I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks—had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.”””

    That was my thought to after reading your first paragraph. It wouldn’t be the first time teabaggers have shot themselves in the foot by demanding 100% ideological purity. Hell, even Reagan had enough sense to say “if you get 80% of what you want and the other 20% is what the other guy wants, that’s a win.” But not these clowns.

    “””Do you trust Roe with these guys? Do you trust any law with these guys?”””

    I won’t really trust the Supreme Court, any more than any other government institution, unless it has a liberal majority on it, which clearly isn’t the case now. But I do feel better about them now than I did a week ago.

  10. 10.

    third of two

    June 28, 2012 at 4:56 pm

    Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

    Agreed. The Fab Four made up their minds long ago wrt ACA; the real work lied (pun!) in how they rationalized their conclusions.

    Roberts’ decision to side with teh librulz is puzzling. Maybe he still wants to preserve some of SCOTUS last shreds of credibility. I’ve gotten a whiff of that from him before. Less puzzling is Kennedy’s decision: he seemed to just want to throw out the entire thing as untenable (based on his reading of the Commerce Clause/individual mandate) but I’m not sure he is as ideologically driven as Thomas, Scalia and Alito.

  11. 11.

    Martin

    June 28, 2012 at 4:56 pm

    And the biggest disappointment to this ruling is that it wasn’t enough of a blow to Scalia, Thomas, and Alito to kill them dead on the spot. Not that I’m wishing for that – but it’d be convenient.

  12. 12.

    Chris

    June 28, 2012 at 4:57 pm

    @Martin:

    “””The GOP, as sociopathic as they are, are fully aware of how dire the need for healthcare reform is.”””

    I’m not at all sure of this. A few people, like Roberts, haven’t been completely blinded by ideology, a few more still remember to place their self-interest ahead of said ideology. But I’d say the majority of Republicans, probably including those in politics, really has drunk the kool aid completely and totally and sees no need for reform except in the form of privatizing everything.

  13. 13.

    Valdivia

    June 28, 2012 at 4:58 pm

    Hell no. This is why anyone sitting this election out in any shape or form on our side is delusional. Romney will nominate clones of Scalia/Alito if he gets a chance. Roberts is now verboten.

  14. 14.

    Martin

    June 28, 2012 at 4:58 pm

    Do you trust Roe with these guys?

    No decision like Roe should depend on the courts. Roe should have been legislated after the decision so we wouldn’t have to rely on the courts to uphold it. Not legislating it means we have no check against the court.

  15. 15.

    Just Some Fuckhead

    June 28, 2012 at 4:59 pm

    You gotta be relieved as hell, John Cole, if that is who you really are.

    You personally ensured all these nutbag Justices were appointed through your efforts in the voting booth and rightwing advocacy over the years..

    .. and then one of the assholes you were responsible for with that final idiotic 2004 Presidential vote saved yer bacon.

    It’s like a thriller.

  16. 16.

    Turgidson

    June 28, 2012 at 4:59 pm

    Do you trust any law with these guys?

    Well sure. I have every expectation that they would uphold laws that restrict access to abortion, laws that make it harder for brown people to vote, laws that ease regulations on guns, laws that favor business interests in general, laws that weaken organized labor….

  17. 17.

    Cap'n Magic

    June 28, 2012 at 5:00 pm

    Poor Ben Shapiro. Maybe he’ll like Somalia or North Korea as his new home, given his hatred of the US Government right about now.

    Don’t trust Congress. Don’t trust the President. Don’t trust SCOTUS. Now It’s Up To You.

  18. 18.

    elm

    June 28, 2012 at 5:00 pm

    I’ve seen old burnsie gloating in other threads today, so I went to the record:

    burnspbesq Says: FWIW, I stand by my earlier prediction that if the Court reaches the Constitutionality of the individual mandate, the vote is 7-2 to uphold, with Alito and Thomas the dissenters.

    Four on commerce + 1 on taxation against 4 to throw the whole thing out vs. 7-2 on Commerce Clause: what’s the difference?

  19. 19.

    Martin

    June 28, 2012 at 5:02 pm

    @Chris:

    I’m not at all sure of this

    No, there isn’t a Republican member of Congress with more than 5 years of service that hasn’t spoken out in favor of HCR. They may differ on how they would implement it, but no legislator has ever said (until starting 3 years ago) that reform wasn’t needed.

    They’ll say publicly that reform isn’t needed, but they all know full well that it’s a lie.

  20. 20.

    Valdivia

    June 28, 2012 at 5:02 pm

    @ABL:

    yay for you. having seen my dad go through his own brain surgery, it’s a hard slog doing that.

  21. 21.

    Hal

    June 28, 2012 at 5:02 pm

    The conservatives would have thrown out the mandate, and then said; “Hey, we are not Congress, dammit, and we need to respect the separation of powers, so we’ll just scrap the whole thing and leave it to Congress to fix it. Democracy saved!”

    The plan really was an amazingly transparent work of partisanship they would have simply cloaked as respect for the constitution.

  22. 22.

    Just Some Fuckhead

    June 28, 2012 at 5:09 pm

    @elm: He’s fucking amazing, like Kreskin. Just ask him.

  23. 23.

    General Stuck

    June 28, 2012 at 5:15 pm

    Do you trust Roe with these guys? Do you trust any law with these guys?

    Absolutely, and I agree with this court continuing to swing right, the VRA, Roe,, But 5 supremes agreeing that the individual mandate was not constitutional means little. Lest democrats want to pass another social safety net law by intervening in private industry, that would require another case of making people pay for something the government wants to do. And they can still do that by simply calling the funding part a tax, which Obama did at one time. By Roberts allowing the entire act to remain in effect, in practical and likely legal effect, he was affirming the ACA falling under the commerce clause for All but the funding element to offset industry losses, unique to the ACA. He gave the wingers nothing more than a talking point, agreeing with the 4 dissenters on the narrow issue of the individual mandate. Stuff like Roe and the VRA weren’t passed under the CC.

  24. 24.

    The Other Bob

    June 28, 2012 at 5:19 pm

    Can someone please start the effort to impeach Scalia – f’n political hack? WaPo Editorial actually said soemthing inteligent about the a-hole’s politcal commentary and conflicts of interest.

    linky

  25. 25.

    Rommie

    June 28, 2012 at 5:20 pm

    I’m not 100 percent certain Roberts would have voted no because of the commerce clause, IF it was the only thing to vote on. Using the taxing power of Congress gave him an out and he took it. It’s then easy to “suggest” he thinks the commerce clause wasn’t good enough, and he would have stood along with the Four Horsemen with the thumbs down. He’s still on their side, you see *wink wink*

    But since he didn’t have to put pen to paper, we’ll never know (Thank Gawd) what CJ Roberts would *truly* have done if the commerce clause was the only up/down vote available. I’d rather not find out, yes, but there’s a least a hint that getting branded WORST CJ EVAR means something to him. Citizens United already has a brand burned in that has to sting.

  26. 26.

    slag

    June 28, 2012 at 5:27 pm

    @The Other Bob: Maybe Dick Cheney will kindly take him duck hunting again.

  27. 27.

    GoodGuyGreg

    June 28, 2012 at 5:31 pm

    You know the Right will now demand Roberts show fealty to the cause – it’ll be interesting to see if he bows his head & follows along or pushes back after being called a traitor with this verdict.

  28. 28.

    General Stuck

    June 28, 2012 at 5:33 pm

    @Rommie:

    I think Roberts, from the moment he knew this would end up in his court, was going to uphold it. He may be a right winger, but he is very smart and thoughtful, unlike an Alito or Thomas, and now full time nutbag Scalia. And the consequences of striking down the ACA was just too much for his sense of legacy, as will as the legal and political turmoil that would ensue.

    It was only a matter of the best way he could have his cake and eat it too, though republicans rarely eat cake, and they are going to want his scalp for this. I don’t know what was Kennedy’s thinking, or if he was in on the face saving, making it a 5 to 4 decision, and therefore partisan to a degree, as well as he and Roberts making up the five to impotently wank about the CC not covering just the ind. mandate.

  29. 29.

    General Stuck

    June 28, 2012 at 5:37 pm

    @ABL:

    Now I’m going to drink and be merry because I DON’T HAVE TO GET BRAIN SURGERY THIS SUMMER

    That kind of puts stuff in perspective, don’t it?

  30. 30.

    WereBear

    June 28, 2012 at 5:43 pm

    @ABL: Glad to hear that!

  31. 31.

    Omnes Omnibus

    June 28, 2012 at 6:14 pm

    @ABL: Hooray you!

  32. 32.

    Svensker

    June 28, 2012 at 6:25 pm

    @ABL:

    Yay and hugs. Yikes.

  33. 33.

    gene108

    June 28, 2012 at 6:26 pm

    I hope the 20th Century gets overturned.

    I want all the poor jack-asses, who keep voting Republican and expect the minimum wage, basic workplace protections – such as anti-sexual harassment laws, worker’s compensation, etc. – and every other progressive law to still exist, to get the rude awakening they so richly deserve.

    When they’re making $1/hr at Wal-Mart and sleeping three families to a two bedroom apartment to pay rent, they may finally begin to grasp what liberals have done for them over the last 100 years.

  34. 34.

    jp7505a

    June 28, 2012 at 7:07 pm

    I would not pop the corks on the bubbly just yet. Sure its great that ACA was upheld BUT when you get into the fine print Roberts agreeded with 99% of what the 4 conserative justices wrote in their desent. Why did Roberts vote with the 4 liberals – maybe so that a ‘partisan hack court’ didn’t become a campaign issue. In addition he looks so much like a STATESMAN. Next stop Mount Rushmore.

    We all have been getting a good laugh at the wingnuts and their fact free alternate universe but that fact free universe has just been afirmed as mainstream legal doctrine by 5 justices, Roberts included.

    I’m not sure they want to go back to the 19th century rather I think the destination they have in mind is 1783. In spite of all the reverent talk of the founding fathers and the waving of copies of the Constitution, their theory of government seems more in line with the Articles of Confederation and we, in the real world, know how that turned out. I’m not really sure how you run a 21st century economy, which is the linchpin of the global economy, using 18th century legal and economic concepts but if the GOP wins big in November we are gping to find out.

  35. 35.

    El Cid

    June 28, 2012 at 7:27 pm

    Since most Americans didn’t grow up being poor and working class in the McKinley era, they just don’t realize how much they’re going to love it when righties bring us back to that golden era.

  36. 36.

    JCT

    June 28, 2012 at 7:37 pm

    @The Other Bob: Conflicts of interest? Clarence Thomas and his wife the anti-ACA crusader take that term to all new heights.

  37. 37.

    TenguPhule

    June 28, 2012 at 7:38 pm

    Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

    In all fairness, I want them killed because they’re evil bastards.

  38. 38.

    pattonbt

    June 28, 2012 at 8:19 pm

    Haven’t read the comments yet or fully thought out all of the ramifications of the entire ruling (but who has and if someone claimed such, how right could they be right now anyway?), but the thing that struck me most about this decision is that the 4 dissenting justices were going to throw out the whole thing.

    This to me is the lasting outcome of the ruling. They were going to throw out the whole thing. I am thinking there are going to be two long lasting “political” meme lines going forward which will both help and hurt D’s. First, we were one slightly less sane justice away from a complete destruction of modern SCOTUS precedent and progress. This should scare D’s. This should hopefully energize them for October (I’ve always been a sole issue voter – SCOTUS). It should also scare the bejesus of “independents” to know that while adding a tax sucks and the law may not be perfect, it had some amazingly great things, and yet the SCOTUS was one vote away from pretty much permanenetly destroying health care in the US. Not just back to the bad old days, but basically no consumer protection at all.

    The second meme will be the one that allows the R’s to bray about “taxes” and “activist judges” and “death panels” and “freedumb!” and “tyranny”, etc., and it probably does energize them too. And part of me, in the darker moments, wanted the ACA to fail so those on the other side would see the repercussions of what they wrought (losing all the protections in the law – now they won’t have to see that fallout and can bray like martyrs).

    But I just can’t get over the 4 judges willing to toss out the bill in its entirety. Crazy people.

    Sorry, this probably isnt a well thought out, fully formed post, but it’s my first take (having just woken up on the west coast of Australia and seeing the news (of yeah, and Yay! the ACA, while not perfect, was upheld – great day).

  39. 39.

    Haydnseek

    June 28, 2012 at 8:19 pm

    I wouldn’t trust these malignant swine to hold my coat while I change a flat tire.

  40. 40.

    SFAW

    June 28, 2012 at 9:30 pm

    Sorry, this probably isnt a well thought out, fully formed post,

    Maybe not, but it’s pretty much spot-on.

    It’s almost as if they’re auditioning for Monty Python:

    “NOOO one expects the SCOTUS Inquisition! Our chief weapon is Fear and Insanity … Two … Our Two chief weapons are fear, insanity, and a fanatical devotion to right-wing ideology … Three! … Our THREE chief …” usw.

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