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The NYT Praises Roberts’ Exquisite Delicacy

From the New York Times:

Roberts Shows Deft Hand as Swing Vote on Health Care

By ADAM LIPTAK
June 28, 2012

WASHINGTON — Chief Justice John G. Roberts Jr. has a favorite quotation from one of the giants who preceded him on the Supreme Court. Assessing the constitutionality of a law passed by Congress, Justice Oliver Wendell Holmes Jr. once wrote, “is the gravest and most delicate duty that this court is called on to perform.”

But apparently that duty does not supersede ‘protecting the Court’s reputation.’

In finding a way to uphold President Obama’s health care overhaul law on Thursday, Chief Justice Roberts performed the task with exquisite delicacy

And some are suggesting that this is exactly why he did it. To get the praise of the New York Times.

To be sure, the chief justice considers himself the custodian of the Supreme Court’s prestige, authority and legitimacy, and he is often its voice in major cases

The "Supreme Court’s prestige, authority and legitimacy" depends on its adherence to and defense of the Constitution. If it does not do that, why do we even have a Supreme Court?

But the chief justice’s defining and delicate role in upholding the health care law will always be associated with his tenure.

And it is his own fault.

On the one hand, he said, the law’s requirement that most Americans obtain health insurance or pay a penalty could be justified under Congress’s power to levy taxes. The four liberals agreed, though they would have preferred to sustain the law as a regulation of commerce.

How does The Times know this? Through mind reading? Most liberals would consider expanding the power to tax into the realm of behavior to be even better than expanding it under the Commerce Clause.

The government now has unlimited power to tell us what to do.

But the law could not be justified in that way, the chief justice went on, and here he was joined by the court’s four more conservative members.

Chief Justice Roberts suggested that even he did not find the tax argument especially plausible. But he quoted Justice Holmes to explain why it was good enough. “As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid,” Justice Holmes wrote, “our plain duty is to adopt that which will save the act.”

Except that the statute was not written as a tax. It was not even argued to be a tax before the Court. Justice Holmes would never have approved of re-writing the legislation from the bench. That is the Mother Of All judicial activism.

In effect, the Supreme Court has just implemented its first tax. That is not their role. It is anti-constitutional.

In the earlier cases, Chief Justice Roberts had drawn varying lessons from Justice Holmes’s observation about the grave and delicate duty the Constitution imposes on the Supreme Court. Once, he said it counseled caution. Another time, he said it required action. On Thursday, he chose compromise, or perhaps statesmanship

Just imagine how Mr. Roberts must be glowing to be called a ‘statesman’ by the New York Times. And never mind that it is not his job to play the statesman.

The legacy of the Roberts court came into focus on Thursday, and it is one in which the chief justice serves as a sort of fulcrum and safety valve. He can pull the court back from bold action, as he did in 2009 when he persuaded seven of his colleagues to follow him in a novel interpretation of the Voting Rights Act rather than striking down its heart, as a majority of the justices had seemed inclined to do at the argument.

Or he could join it in bold action, as he did seven months later when he provided the fifth vote in Citizens United, which reversed precedents, struck down part of a major law and amped up the role of money in politics

But here The Times is warning that they will still crack the whip when he does not do all of their bidding.

Thursday’s health care decision tacked back in the other direction, toward restraint.

Whew. Imagine his relief.

That is not to say Chief Justice Roberts has ruled out aggressive action by the court, and he has said that he does not view striking down a federal law as of itself evidence of activism…

Again, there is nothing more activist than re-writing legislation, inventing justifications for un-Constitutional legislation, for implementing a new tax from the bench.

The health care decision provides a new data point. It will disappoint advocates of conservative and libertarian “judicial engagement,” and it will confound commentators who say there is nothing left to judicial restraint.

In typical fashion, the New York Times has things exactly backwards. This shreds the last bit of judicial restraint, when you can just make up justifications for the constitutionality of legislation, willy nilly.

This is even worse than finding support for the ‘right to privacy’ in some hitherto unseen penumbra. This is giving Congress a hitherto unseen power to tax us for anything and everything. And without a constitutional amendment or even a piece of legislation.

As Chief Justice Roberts explained at his confirmation hearings seven years ago, his approach to testing the constitutionality of federal laws involved significant deference to the elected branches.

“All judges are acutely aware of the fact that millions and millions of people have voted for you and not one has voted for any of us,” he told Mr. Hatch. “That means that you have the responsibility of representing the policy preferences of the people.”

Nobody voted to raise taxes. Even the Democrats who rammed this bill through in the dead of night claimed it was not a tax. And, of course, every poll shows that the people do not want Obama-Care. In fact, some polls show them opposed to it by a margin of three to one.

So Mr. Roberts actually ignored the "policy preference of the people." But, of course, not the policy preferences of the New York Times.

He made the point more sharply on Thursday, in a part of his opinion in which he spoke only for himself.

“It is not our job,” he said, “to protect the people from the consequences of their political choices.”

The job of the Supreme Court is to protect the Constitution and the rule of law. They took an oath to that effect. And yet Mr. Roberts and the liberal justices deliberately failed to do their job to bask in the glow of a liberal news media and future liberal historians.

Ironically, in time, this ruling will be seen for what it was. One of the most political and wrong-headed in the Court’s history. And Justice Roberts will be remembered accordingly.

We hope this momentary praise from the left will be worth destroying the Constitution and, ironically, his own reputation and ‘his court’s’ in the long run.

This article was posted by Steve Gilbert on Friday, June 29th, 2012. Comments are currently closed.

12 Responses to “The NYT Praises Roberts’ Exquisite Delicacy”

  1. Enthalpy

    Mark Davis always has a comment for this type of insightful analysis: this is a “steaming shovelful.”

  2. Chinnubie

    At what point do we enlist a Jefferson Davis type to raise an army and restore the true meaning of the Constitution according to the Founders intentions? I mean at what point do we no longer exist as the America that we all knew while we were growing up? When does enough become enough? I have to think taxing behavior draws some kind of line in the sand, does it not?

  3. Petronius

    Something fishy is going on.

    Let’s start with Chief Justice John Roberts.

    As a result of his decision in the Obama-Care case, National Association of Business v. Sebelius, 28 June 2012, precedent has now been established that Congress may, under its taxing power, single out a group of American citizens and impose a penalty upon them and confiscate their property, if they do not behave in a certain way (i.e., in ways that are considered “good” according to Liberal ideology). Roberts’ decision accords no limits to this power to regulate and tax our behavior. This is certainly a far-reaching extension of the taxing power. It is certainly one of the most frightening infringements on individual liberty imaginable. It is incompatible with life in a free society.

    To reach this harsh result, Roberts had to shove the camel of Obama-Care through the eye of the judicial needle. He had to ignore the Constitutional requirement that tax bills must always originate in the House (“All Bills for raising Revenue shall originate in the House of Representatives….” Art. I, sec. 7). Second, he had to ignore the careful and deliberate efforts made by the authors of the Obama-Care statute to frame the individual mandate as a penalty, and to avoid the appearance of a tax. Third, he had to ignore the legislative history and public pronouncements made by the President, by Secretary Sebelius, and by the authors of the bill in Congress that it was a penalty and not a tax. Fourth, he had to rely on the government’s throw-away (and reluctantly offered) argument that the mandate was really a tax after all, rather than a penalty––an argument that was not fully briefed by the attorneys who argued the case on both sides.

    Roberts might have accepted the mandate at face value and moved on with the four dissenters; but for some reason he didn’t. Instead he scrutinized it and found it to be in reality a tax, thereby saving the law by finding it to be something that––according to its authors––it was never intended to be. Clearly, in making these leaps, Roberts has suddenly become a judicial activist. The question is, Why?

    I have never been one to fall for conspiracy theories. Nevertheless, it seems to me there are only two plausible explanations for Robert’s recent antics. Either (1) he has suddenly taken a hard turn left and become a leftist ideologue, or (2) he has been reached. The latter explanation seems the more likely of the two. Note that Roberts twice suggests that he disagrees with the “wisdom and fairness” of the law. That is hardly the ringing endorsement of a recently converted proselyte to Liberal ideology.

    As regards the Four Horsemen of the Apocalypse, we know exactly who they are and where they stand :
    1. Elena “Little Boots” Kagan
    2. Sonia “the Shredder” Sotomayor
    3. Stephen Breyer
    4. Ruth Bader-Meinhof Ginsburg
    These are hard-core leftists who have a long history of judicial activism in support of Liberal ideology and politics. There is no question about their identity or allegiance.

    But in the case of Roberts he was regarded on all sides as a moderate conservative and non-activist by background. He was a former member of the conservative Federalist Society. Therefore, it seems unlikely that he would suddenly become a leftist activist and violate his own principles. Turnings on the High Court have happened before. Chief Justice Earl Warren is the notorious example. There are a few others who turned left: Sandra Day O’Connor (Reagan), John Paul Stevens (Ford), and David Souter (Bush 41). But these justices were not of proven conservative background at the time they were appointed, and none of these turnings were as dramatic and unexpected as Roberts.

    One theory has it that Roberts believes it is the Chief Justice’s mission to shield the Court’s reputation from criticism by making a show of political impartiality. I’m not buying that argument. You do not enhance the Court’s reputation for integrity by betraying your principles, twisting the facts, shredding the Constitution, and trampling on freedom. The Four Horsemen have certainly never shown the slightest compunction about tarnishing the Court’s reputation by openly functioning as an arm of Liberal politics and ideology. Neither did any other Liberal justices. They gloried in their activism, and were lionized for it.

    And after all, the primary mission of the Court is to operate as a check on political excesses by the other branches of government. That is by definition a conservative mission. Who better to accomplish that mission than the Chief Justice? So why should Roberts suddenly worry about the Court being viewed as conservative? Why isn’t he willing to do his job properly?

    I don’t know what has happened to Roberts. But clearly something is amiss. We know that Roberts suffered seizures in 2007 and 1993. We know that the New York Times has probed for irregularities in the South American adoptions of Roberts’ two children, Jack and Josie. I don’t wish to speculate. Only Roberts knows what his reasons were. But also note how incredibly “lucky” and aggressive Nerobama has suddenly become in the last few weeks :

    • He granted an amnesty to illegal aliens, unilaterally and without authority, and he has not been criticized for it in any quarter.
    • He launched a vicious attack on the State and people of Arizona, in effect stripping Arizona of its borders and defenses, and the American public didn’t bat an eye.
    • He or his closest national security advisors repeatedly leaked sensitive top secret information to the press, all done without any national uproar or reprimands.
    • He supported the stonewalling of Fast and Furious by claiming executive privilege, again without serious repercussions.
    • And now this.

    These are extraordinary events. Each event standing alone is shocking. Taken together they are ominous. The rule of law is collapsing before our eyes. The thumbscrews are being tightened.

    I am drawn to the conclusion that something untoward is happening behind the scenes. And that things are about to get much worse.

    • BigOil

      I believe you are properly connecting the dots. They are ramping up the tyranny at an alarming pace…and the only sound we hear is crickets. If no elected official with the Constitutional power to stop the lawlessness acts in the next 6 months – just how far will they go?

      I guess most people still think it cannot happen here.

    • potus4

      I’m very confused about his decisions lately. I am also having a hard time accepting the argument that he has pulled off the ultimate Jedi mind trick on Dear Leader. If you think that a law is unconstitional then kill it; right then and there. Why play a game of chance that Congress will correct its mistakes (ha!). I’m depressed that our country’s greatness is being chipped away one over-burdensome law at a time. At least this site serves as good therapy from like minded folks.

    • Petronius

      Our confusion is understandable because Roberts’ strange mandate-is-a-penalty-is-a-tax-not-a-tax-she-loves-me-she-loves-me-not decision doesn’t make sense. That is because his decision is results driven.

      The decision has a kind of superficial internal logic but does not withstand close scrutiny. Robert’s reasoning is hollow and seriously flawed.

      I believe that Nerobama and Roberts looked eyeball-to-eyeball and Roberts blinked. He had a last minute failure of nerve, and caved to political pressure. That is why Justice Kennedy’s presentation from the bench––which had the ring of a majority opinion––was impassioned; Kennedy and the three conservatives felt betrayed.

      In 2005, Ann Coulter pointed out that Roberts was an unknown quantity, a stealth nominee :

      http://www.anncoulter.com/columns/2005-07-20.html

      Now Roberts has proven himself a weakling who lacks the courage of his convictions.

      However, Roberts is a smart man. So it’s also possible that he understands the dangerous transformation of the country that is taking place, and he concluded that the Supreme Court is too weak as an institution to take on Nerobama in a partisan decision. And that as a result, Roberts concluded that the country can only save itself when the will of the people is expressed at the election.

      There are a couple of problems with that interpretation. Because it it were true, it is still a reflection of Roberts’ own weakness as the Chief Justice and spokesman for the Court. And because it fundamentally misreads the type of government created by the Founders. The Founders were not democrats. The Founders gave us the Supreme Court for a reason. And the Court is the co-equal of the President.

      But that is not the whole story. There is a bigger picture here. My sense of the series of recent events is that there are powerful unseen forces gathering, and that they are gaining momentum. My sense is that the Republic is rushing toward an impending crisis whose precise outlines remain for the moment hidden.

      My feeling is that the Republic is in greater peril now from Nerobama than at any time since Valley Forge.

  4. canary

    Was Justice Roberts black mailed?

  5. canary

    Steve has done an excellent job on this Supreme Court ruling.

    Well, there is that little loop hole exemption of religious beliefs.
    Time to start a new non-profit Religious Denomination to get exempted from this Obamination.
    I think the section of Obama Health Care where the IRS will penalize the people buy garnishing taking tax returns of those who don’t pay for it will turn to garnishing wages.

  6. canary

    Supreme Court passes mandatory health-care, but stuck down expanding medicaid hidden under headlines.

    Yahoo:

    Map: Where Obamacare would expand Medicaid most

    By Liz Goodwin and Chris Wilson | The Ticket

    While the Supreme Court narrowly upheld the core of President Obama’s health care law Thursday, the justices came down hard against a provision that would have expanded Medicaid to millions more low-income Americans. As passed by Congress, the legislation expanded Medicaid to nearly everyone making up to 133 percent of the federal poverty line, which would have added an estimated 16 million people to state Medicaid rolls over the next seven years. States that refused to comply would run the risk of losing all Medicaid funding.

    Seven justices ruled that the move went too far, and that the government can only withhold the funds to expand Medicaid, not existing money that helps states run their pre-expansion programs.

    …In the map above, each state is shaded according to how much its Medicaid program would expand under the new law, according to the higher end of the Kaiser Family Foundation’s estimates (pdf, page 45)…

    Conor Skelding contributed to this report.
    http://news.yahoo.com/blogs/ti.....00889.html

    All I know is the Obama’s Death Panel ran by Medi”care” is threatening old people they won’t get their medicare paid unless they do an enormous lengthy daily game under the guise of Speech Therapy “trick” questions.

    Official trick question example for the elderly:

    Therapist: “What “color” starts with the letter “S”. ?

    Elderly patient on (pain medication’s) first pause to a question: “…pause…”

    Therapist: the color “Silver”

    Elderly patient (add tired from 2 appointments at different medical facilities) : “But, Silver is a medall ”

    Therapist: (to the another therapist in the room: “Oh my gosh, I found a store where children’s clothes for my baby twins is so cheap. blah blah.”

    “Other therapist” : Oh blah blah blah.

    Edlerly patient: (tiredly cranky but nicely) asks: Please could you talk about shopping another time so I can focus on answering all these questions?

    Therapist: Who is the President?

    Patient (who knows answer, but really sick of this question asked over and over: “I am sick of answering your questions, I don’t know?”

    Therapist: “Obama”.

    Patient: “You mean that sob is still president?. I don’t want to answer anymore questions while you gab with the other therapist about baby clothes on sale?”

    Therapist: (threatening and glaring in anger) : “Just so you know. Every question you refuse to answer means one more day Medicare isn’t going to pay your bill.”

    True Story. Not a joke. And what is this hour a day for elderly in nursing home rehab section costing?

  7. canary

    Romney praises The New York Times as favorite newspaper he reads.

    Newsmax: Obamacare Ruling Clear Reason to Oust Obama
    29 Jun 2012 By Ronald Kessler

    “I’m old-fashioned enough to still want to look at a magazine, like Newsmax,” he continued.

    He didn’t have high praise for the nation’s two leading newsweeklies, however.

    “I’m afraid Newsweek and Time have fallen off my shelf, they’re not what they used to be in terms of my interest, but I still read The Wall Street Journal and The New York Times in paper version if it’s available,” he said.

    http://www.newsmax.com/Headlin.....ode=F587-1

  8. GetBackJack

    From a friend’s 70+ year old uncle …

    ***ly I’m really not trying to be confrontational but at 74 I have had my nose broken in the revolving door of naïveté a few more times than you have. Doing what was right… believing in the rule of law… cost me a $33 million business and has succeeded in providing me with more than 15 years to think about and evaluate people especially those without a moral foundation (most politicians) and certainly all lawyers and judges! If you don’t think Justice Roberts is a gutless coward and the rule of law is broken just ask the preferred shareholders at General Motors what they think of Obama, the judge who without a hearing gave away their stock to the unions what they think of the rule of law? I know I’ve been there and have been forced to write a $1,550,000 check from my personal account. No reason on God’s green earth will ever justify the decision made by a lowlife asshole who genuinely believes he is smarter and better than 300 million people. If he was dying of thirst I wouldn’t give him a glass of piss! UJ

    ba-de ba-dee ba-dee, that’s all folks


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