I buy into the “John Roberts saved the court” stuff, and I find the right’s attacks on him nauseating. So much so that I’m going to link to link favorably to a piece by the odious Charles Lane on the topic:
What anonymice would spin Roberts’s performance as cowardly and then scuttle behind the protective folds of CBS’s source-protection promise? Who are the Cassius and Brutus inside the court, creeping up behind the chief justice with their verbal daggers?
I wouldn’t know. I do know that CBS’s reporter, Jan Crawford, is a fine journalist whose good relationship with Justice Clarence Thomas and his wife, Tea Party booster and sometime Daily Caller correspondent Ginni Thomas, is widely known around the Supreme Court.
Thomas comes off as a principled conservative in Crawford’s story, especially by comparison to the Chief Justice. He is one of the conservative justices who “deliberately avoid[s] news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times).” He doesn’t want to be “influenced by outside opinion or feel pressure from outlets that are perceived as liberal.”
By contrast, that wobbly John Roberts “pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.”
(emphasis mine)
John Weiss
Good ol’ Long Dong Silver.
Hunter Gathers
I wonder if Ginny has ever drunk dialed Crawford.
Mark S.
From what I’ve read, Roberts wrote that dissent for them.
Which apparently isn’t without precedent. I once read that William Douglas wrote the opinion for some case, and the dissenting justice (don’t remember who, but it wasn’t anyone famous) was having trouble finishing his opinion. Douglas offered to write the dissent for his colleague, which his colleague accepted.
Baud
So one rumor I keep hearing is that Roberts wanted to strike down the mandate, not the whole law, and that was the point of disagreement with the dissenters. But if Roberts wanted to strike down just the mandate, he could have voted to do only that, and his decision would have carried the day. So clearly Roberts was convinced to uphold the law in its entirety (except for that odd Medicaid piece). Why he was convinced to do that is another question.
Jim, Foolish Literalist
@Hunter Gathers: Or if Clarence ever bought her a Coke.
Valdivia
Doug only because it is you I am going to forgive the fact that you made me read Lane and agree with him.
Now I need a drink.
JPL
@Jim, Foolish Literalist: ugh
beltane
Eeeeeew, CBS’s legal correspondent is best buddies with the odious Clarence Thomas and his corrupt, shamelessly vindictive wife Ginny. This tells me nothing about John Roberts and everything about Jan Crawford.
burnspbesq
Thomas has all the wrong principles, but he is sincere and consistent in his adherence to them. Faaaaahhhhhbulous.
DougJ
@Valdivia:
He’s such an asshole, even when I agree with him.
gbear
It’s unpossible. Thomas never says anything.
Baud
FTFY
MattR
@Baud: I had this thought as well. You are likely correct, but I can’t say for sure since we don’t actually know how the 4 “liberal” justices felt about ditching the mandate but keeping the rest of the law. It is possible that one of them stated that if the mandate went, then the whole law had to go with it.
Valdivia
@Mark S.:
if one believes this CBS article Roberts didn’t write that dissent. I take anything in that article with a grain of salt though because the description of Kennedy is so disconnected from reality it’s not even funny.
@DougJ: I loathe the man. I am preparing to toast that sentiment right now/
valdivia+1 very soon.
Lee
That was a bit of a dick move on Lane’s part. From what I can from BJ commentors, it is par for the course.
Bubblegum Tate
@beltane:
Which, of course, is direct proof of liberal media bias.
gbear
Over at the Maddow Blog:
Maybe we should be happy that the number is more than half…
shortstop
Roberts saved the ACA, for which I shall be eternally grateful. Little too soon to see whether he’s going to “save the court.”
The problem of four rogue justices is not a small one.
Baud
@MattR:
That’s so crazy I hadn’t even thought of that possibility. Maybe we’ll get the real story one day.
Jim, Foolish Literalist
ThinkProgress has more:
Here’s the Reid piece:
IANAL, and I have seen liberal commenters say Thomas is more or less right when he says oral questions in open USSC are just so much theater, but I don’t think I have ever seen anyone claim he is “an important intellectual force”
Patricia Kayden
Had the ACA decision gone the other way, would we all be dissecting the reasons why? No, the left would accept the decision and suck it up, as they always do when unfavorable decisions come down.
The Right’s need to demonize Roberts says more about them than him. He could have made the right decision simply because it was the right thing to do, regardless of the Court’s public image. It’s not as if he can be taken out of office if he makes a decision that ticks off liberals.
Fax Paladin
So are they all, all honorable men…
Baud
@shortstop:
I’m glad he ruled the way he did, but I’m not pretending he’s one of the good guys.
Amir Khalid
Salon has a story claiming CJ Roberts wrote much of both opinions. I’m thinking that maybe the guy’s really Harvey Dent.
Mike E
@MattR: I believe it was done to fend off an insurrection when it was clear to the Scalia faction he was more interested in his duty as chief justice and not so much in their clique. Jilted drama queens, clearly.
IMO this may have the effect of shaving a few years off a few lifetime appointees, if’n you know what I mean…GObama!
ETA shortstop @18, this.
Anya
Charles Lane is the douchiest of douchebags. I cannot stand him. I saw a clip of him on one of the Sunday shows, salivating about how this decision freed Roberts to dismantle the new deal.
David in NY
@Baud:
Well, even as to the mandate penalty, at oral argument Roberts seemed to think it was functionally a tax. So maybe he never did flip. Or maybe he provisionally voted with the conservatives to give them a chance to show why it wasn’t a tax — but they clearly didn’t do that, even in their final opinion. Or, of course, maybe he changed his mind a couple of times, either about what was right as a matter of law or what was prudent.
I wouldn’t rule this out either: Maybe he tried to write some explanation why it wasn’t a tax. And it just didn’t work. I’ve had this happen — sometimes you can’t tell, until you try to write something, how illogical or stupid (or alternatively, powerful) it really is. Justice Stevens has a footnote somewhere (in a case about Anders briefs, another story) about how that would happen to him. Maybe Roberts changed his mind because he firmly came to believe the mandate’s penalty was in effect a tax. That it also came to fit his notion of the proper role of the Court might merely have cinched the deal.
This sort of thing can happen, and we may all be the better for it.
David in NY
@Amir Khalid: If he did try to write a majority op for the conservatives, that might fit in with my theory, above. See @David in NY:
Baud
@David in NY:
I do this all the time, so I get it. The official line will be that this was all about the merits, but I have to wonder…
shortstop
@Baud: A wise approach.
Brian R.
I had a dream last night that Scalia died from a stroke and Thomas, not knowing how to live without him, demanded to be buried alive alongside him.
burnspbesq
@David in NY:
Ain’t that the truth.
shortstop
@David in NY: Interesting–thank you.
Ruckus
@Jim, Foolish Literalist:
“an important intellectual force”
If he’s “an important intellectual force” to anyone but himself then I’m the worlds greatest superhero. Want the odds on that?
shortstop
@Brian R.: So sick and so very funny.
General Stuck
I honestly didn’t know what to make of Clarence Thomas, until after I saw the 60 minutes interview a few years back. I now think he is a tortured soul, that unfortunately, is acted out on the highest court in the land, in all sort of crypto fascist like rulings that fuck the entire country. I think when a case is certed, the most thought he gives the case, is how can I fuck over the poor and powerless the most, and ingratiate myself to the white party I joined. And that is what I’ll decide on in my vote, and then he does just what that is.
And I do believe that Long Dong Silver rode the range like we waz told.
Jim, Foolish Literalist
@General Stuck: there was a long magazine piece around the same time– NYT sunday mag, maybe?– in which a friend of Thomas’ said, anonymously, that he hates the job and only stays on because he thinks his resignation would give his enemies satisfaction. And this was during the Bush years.
kindness
Oh Please Oh Please, can’t we please have a ‘Night Of The Long Knives’ from the conservative Supreme Court Justices?
That is a soap opera I would watch.
General Stuck
@Jim, Foolish Literalist:
The nutters love him. It’s like having Red State deciding cases on the Supreme Court. And he ain’t no John Roberts, no more.
David in NY
@Baud: @shortstop:
Well, Roberts clerked for Henry Friendly of the Second Circuit, whom he greatly respected, and I’m pretty sure Friendly was a big fan of the view that there’s a strong presumption that statutes are constitutional. That view might have been particularly potent to Roberts if his instinct was that most of it was within Congress power (as it was beyond any doubt) and the mandate’s penalty was functionally a tax. I can see how, in the way they teach you in law school, Roberts could have come to his final opinion. Especially if he began to feel that the other conservatives were pushing an unwise course on him.
Of course, this presumes that Roberts is really a traditional judicial conservative (the presumption of constitutionality is the core of judicial restraint), and not, as I had thought, a movement conservative. The best evidence against my hypothesis is Citizens United, I think. But that’s the First Amendment, against which statutes are the least potent, so, who knows? Evolving doctrine could lead to a radical result in that case, where it led to a dead end for him with the ACA.
Omnes Omnibus
@Jim, Foolish Literalist: Thomas is easily one of the most bitter and vengeful people in public life today. I am amazed that he has not eaten his own spleen yet.
Mike E
@Anya: To quote Lane: While everyone on the court plays checkers, Roberts is playing chess.
And the president drinks their milkshake in the 11th dimension.
David in NY
@kindness: Hey, I’ve already used that analogy. I want credit.
General Stuck
@Omnes Omnibus:
I don’t hear from ya, you don’t write no more. whas up?
Baud
@kindness:
I think, out of a spirit of bi-partisanship, the Democrats should agree to their request to impeach one of their 5 justices. We’ll even let them pick.
Omnes Omnibus
@General Stuck: Quoi?
Mark S.
@Omnes Omnibus:
Wouldn’t you be bitter if you had a well-paying lifetime job doing intellectually stimulating work?
General Stuck
@Omnes Omnibus:
We spell that wut? in American, bud.
dmbeaster
It seems clear this is Crawford reporting what Ginny told her. Ir says less about Roberts and more about the point of view of the conservative drama queens. The dissent is intellectually dishonest, and that seems to be what made Roberts choke.
kindness
@David in NY: I am hereby giving credit to David for ‘Night of the Long Knives’ comments.
Not only because he so richly deserves the honors, and he does, but because it has to be sweltering in NYC right now and I’m in balmy 80 degree pacific coast bliss. (see, we BJers can be nice AND complete assholes at the very same time).
David in NY
For the writers above. I thought Justice Stevens said more on the subject, but in Penson v. Ohio, 488 U.S. 75, 82 n.4 (1988), he wrote, “In addition, simply putting pen to paper can often shed new light on what may at first appear to be an open-and-shut issue.”
Turgidson
@Patricia Kayden:
Well, if the decision went 5-4 the other way, the left would (with quite a bit of justification) be bitching about how the conservative wing are a bunch of partisan hacks. Scalia, supposedly the intellectual giant of the bunch, flipped on precedent he himself recently wrote so that he could vote for throwing the ACA out. Because he’s a fucking hack. If he wasn’t one in the past, he is now.
As it is, four of them are hacks. And one of them is still very much a loathsome right-winger, but playing a longer game and seems to at least care about his and the Court’s legacy and legitimacy.
David in NY
@kindness: That is lovely — though I am thank god still in air conditioning. And the edit function went out on me when I was trying to add earlier, “or brilliant minds think alike.”
David in NY
Ah yes, in Smith v. Robbins, 528 U.S. 259, 290 (2000) (Stevens, J., dissenting):
“To make my second point I shall draw on my own experience as a practicing lawyer and as a judge. On a good many occasions I have found that the task of writing out the reasons that support an initial opinion on a question of law-whether for the purpose of giving advice to my client or for the purpose of explaining my vote as an appellate judge-leads to a conclusion that was not previously apparent.”
Maybe Roberts just couldn’t avoid his own tax argument.
Villago Delenda Est
Lane is another one of these fascist assholes whose head would look much better on a pike that it does on his shoulders.
gwangung
@dmbeaster:
Yeah, that makes sense given Ginny’s late night call to Anita Hill. Also, Thomas’ refusal to recuse himself possibly plays into this…
kindness
@Villago Delenda Est:
Oh if only Game of Thrones was still going….
MM
Having seen Jan Crawford interview Clarence Thomas on stage I can tell you that they “”really”” like each other. (Other interview combinations are usually awkward).
Clarence Thomas goes on and on about the hard life he’s had. And he’s been held back and misunderstood by everybody. But once you get to know him people all realize what a great guy he is.
He has the biggest chip on his shoulder of anyone I can think of.
Kathy in St. Louis
Clarence avoids articles on the health care debate to stay neutral, then sleeps with his wife, the anti health care lobbyist. Yes, I see how that would make you more neutral.
Nethead Jay
Wow. I was watching Dahlia Lithwick on Maddow last night and had a feeling she was hinting at something about Jan Crawford. This feels like it could be the other shoe dropping. Wonder if this might turn out to be the lead-up to some big drama around the court.
David in NY
http://www.scotusblog.com/2012/07/the-narrative-of-judicial-intrigue/
Here’s Lyle Denniston’s comparison of Crawford’s story and the opinions. I think the short take is that they don’t quite match up (the story’s account of the drafting of the dissent is to some extent belied by the contents of the dissent). But Denniston’s only real conclusion is that this may well mean internal trouble in the Court.
Valdivia
@David in NY:
thanks for that link.
Bubblegum Tate
@Jim, Foolish Literalist:
Oh, wingnuts do, but that’s just because he’s their guy, and they consider all of their guys to be intellectual titans.
pluege
narcissistic decisions are as wrong as political decisions.
SCOTUS has no business worrying about image or playing politics. The Grand Bargain specifically for NOT doing those things is life time appointment.
Even as the Constitution is built on the notion of competing interests and the prevention of one interest gaining an insurmountable advantage, it also implicitly is founded on a small, but perceptible and immutable base level of human decency. But like so much else of the Constitution frustrated by today’s republicans, their complete lack of basic decency once again thwarts the intent of the Constitution in regards the SCOTUS bargain.
pluege
narcissistic decisions are as wrong as political decisions.
SCOTUS has no business worrying about image or playing politics. The Grand Bargain specifically for NOT doing those things is life time appointment.
Even as the Constitution is built on the notion of competing interests and the prevention of one interest gaining an insurmountable advantage, it also implicitly is founded on a small, but perceptible and immutable base level of human decency. But like so much else of the Constitution frustrated by today’s republicans, their complete lack of basic decency once again thwarts the intent of the Constitution in regards the SCOTUS bargain.
Joel
By the way, can we refer to Citizens United as “CUNT” since that’s the vulgarity that the group identified themselves by?
David Koch
jan crawford isn’t a “reporter”, she’s a political operative.
a couple of days ago she viciously attacked obama for the bain ads.
some fuckin liberal media bias.
PurpleGirl
The right has to maintain that Clarence Thomas is an intellectual giant because of all the noise they made backing up Bush 1 that he was the best man to fill Thurgood Marshall’s SC place. Really, no kidding. Bush 1 said that.
In no way is that man the equal of Thurgood Marshall.
Lex
A few random thoughts …
We have at least four SCOTUS justices who don’t think social-welfare legislation of any kind is constitutional anymore, because if financing one-sixth of the economy (with multi-state corporations having controlling interests, if not monopolies, on business in many states) isn’t covered under the Commerce Clause, I don’t know what the hell is.
Scalia has written some darned good First Amendment jurisprudence, but overturning his own precedent in a way that would make life harder, not easier, for Americans will do significant damage to his legacy.
Clarence Thomas is an intellectual force in the same universe in which I can throw the Supreme Court building 40 yards to Steve Smith for a Super Bowl-winning touchdown for the Carolina Panthers.
I would take all the hot air about Roberts “saving the court,” etc., with several trainloads of salt. The defining characteristic, the omnipresent theme of his rulings and opinions has been pro-corporation. And in point of fact, some very large corporations were already on board with the ACA before it even cleared Congress. That’s why single-payer was never on the table, and that’s why Roberts voted the way he did. His argument that the mandate is a tax might be factually accurate, but it’s a view he himself appeared not to hold until way late in the game and appears to be more a fig leaf than anything else. Keep in mind that he still maintains that the mandate violates the Commerce Clause.
No, Roberts did what he did because 1) it was in the interests of insurance and pharma for him to do so and 2) it keeps the Court’s credibility alive long enough for it to go on and kill the Voting Rights Act and even, yes, undo much of the New Deal. I don’t often make political predictions and would be glad to be wrong on this one, but I’ve got a very bad feeling.
gocart mozart
A song for y’all, I just composted
CHARLES LANE
Charles Lane is a writer showing us how to hack
by blowing every head he’s had the pleasure to have known
And all the villagers that come and go
Stop and say hello
On the corner is a banker with a golden tarp
The little children laugh at him behind his back
And the banker never wears a mac
In the pouring rain…
Very strange
Charles Lane bleeds my ears and bleeds my eyes
There beneath the blue suburban skies
I sit, and meanwhile back
In Charles Lane there is a sycophant who is a fucking ass
And in his pocket is a portrait of his Queen
He likes to keep his cocktail access clean
It’s a clean machine
Trumpet Solo
Charles Lane bleeds my ears and bleeds my eyes
Four of fish and finger pies
In summer, meanwhile back
Behind the shelter in the middle of a roundabout
A pretty nurse is selling poppies from a tray
And though she feels as if she’s still in play
No one gives a fuck anyway
Charles Lane the writer shaves another column
We see the banker sitting waiting for a trim
Then the Fox News hound rushes in
From the pouring rain…
Very strange
Charles Lane he bleeds my ears and bleeds my eyes
There beneath the blue suburban skies
I sit, and meanwhile back
Charles Lane he bleeds my ears and bleeds my eyes
There beneath the blue suburban skies…
Charles Lane.
gocart mozart
Cross posted at the Washington ComPost, let’s see how long it stays there.
Also, h/t Sir Paul McCarthy for doing most of the work.
TD
I’ve known Jan Crawford well for a very long time, so I’ll de-lurk on this. She was also the first to interview the chief after he was appointed; the idea she was trying to make him look wobbly sounds absurd.
She’s not actually all that conservative, at least compared w other ppl in DC that I know. Some of her articles on McCain were damaging to his candidacy, and she was the *only* reporter to write several groundbreaking pieces on who in the Bush WH specifically approved the use of torture, naming names. I remember this well because I was outraged that no other news outlet would touch it.
I think Thomas is comfortable w her for 2 important reasons: 1: shared SEC football love & rural upbringing. 2: Her book showed him respect as a jurist and pointed out how Scalia follows his lead. I don’t of any other SC reporter that said that before her. For a guy w such an obvious chip on his shoulder, those would be huge things.
Steve Crickmore
Most of you are far too kind and polite on Clarence Thomas. He is the ultimate smear judge, (see her return letter), who still called Anita Hill a “leftwinger”, even after she spent three years teaching at Oral Roberts law school. What ‘leftwinger’ teaches at Oral Roberts university?
gocart mozart
Geez, do I have to spell it out to you? She wouldn’t have sex with him, ergo she is gay. All gay people are leftwing. Ergo, Anita Hill is leftwing.
gocart mozart
@gocart mozart:
Alas, not long.
David in NY
@Lex: Those are very good and troubling points. I guess the question they raise in my mind is, “Why could Roberts not convince any of the other four conservatives, by this reasoning, to go along?” They’re pretty pro-corporate types themselves, but maybe they’re just more anti-Congressional power (but if it helped the Republicans?).
Anyway, before the opinion came down, this was just the way I perceived Roberts.
Carl Nyberg
The idea that Thomas makes his decisions in a vacuum is both preposterous and scary.
Just because Thomas avoids the NYT and traditional media outlets does not mean he is an island. I expect he cares very much what Scalia, Ginny and the Wing Nut Welfare crowd think.
Two, we don’t want a justice who doesn’t care what others think of his opinions.
If you want to detach yourself from society as some theoretical exercise and write from that perspective, become a poet or novelist.
There isn’t much place for the detached man in the real world. He (or she) certainly should not be a judge.
David in NY
@David in NY:
In support of my above hypothesis — that Roberts tried but couldn’t write the tax part striking down the ACA — I note that Mark Tushnet, on much greater study and a little gossip, more or less reaches the same conclusion. Check out his posts at Balkinization: http://balkin.blogspot.com/
Lex
@David in NY: I do not know. My best guess, based on zero direct evidence, is that they’re just pro-GOP and/or anti-Obama. And the reason I say that is that if this Heritage Foundation-birthed program had been enacted by a GOP Congress and president, I don’t know of a soul who thinks the vote to uphold would have been as close as 5-4.