I have now read and noted everything in the 193-page Opinion.
I will give brief analyses of the Majority and Dissenting Opinions later this week, but let me say several things now.
1. Chief Justice Roberts gives a genuinely comprehensive argument for the ivalidity of the Mandate, i.e., that every individual purchase health insurance of pay a penalty, under the Commerce Clause. His argument is classic and thorough. Justice Scalia's Dissent agrees with Roberts and is interesting merely for its slightly different path of arriving at the same conclusion.
2. Chief Justice Roberts' argument that the "penalty" in the law can be construed to be a "tax" and thus capable of suporting the Mandate is logical but flawed. Justice Scalia points this out masterfully in his Dissent.
But, the differences are those of "construction" of the Constitution and of the language used in the law relating to the Mandate. While Roberts takes the word penalty and turns it into a tax to save the law, Scalia takes the word penalty as used in the law and finds that it must be construed to be a penalty, not a tax, and thus cannot support the Mandate. Here, dear readers, we are entering the fine legal argument phase of the Court's decision. Strict or liberal interpretation of the text and the Constitution and case law precedent. Doing all the Court can to save the law or taking the drafters of the law at their "plain language" usage of English and deciding that they could have said "tax" instead of "penalty" if they had wanted to.
This is really what the entire decision hangs on in so far as it saves the Mandate. Strict vs liberal interpretation of the Constitution and the language in the law. Roberts bent over backwards to save Obamacare. Scalia disagreed with the approach and said, in effect, the government should have created a better drafted law if they wanted it to be upheld.
Conservatives want strict construction and will agree with Scalia's reasoning.
Liberals want liberal construction and will agree with Roberts' reasoning.
But, one point is worth making. Both Roberts and Scalia excoriated Justice Ginsberg's Dissent, pointing out her weak arguments and overreaching in applying facts and case precedent.
This is perhpas the only argument I might be able to make vis-à-vis Roberts' Opinion being a slight of hand meant to undercut President Obama. I don't think it is. I think he meant what he said and thus we can now assume that he is a moderate or liberal constructionist and will side with like-minded Justices in the future. More about this later.
I am so confused about this whole thing. Immediately following the decisions in my heart believed that Roberts had abandoned his conservative principals, his strict constructionist views and went over to the other side. I still today have to force myself not to believe that was not exactly what happened.
ReplyDeleteIt must be difficult for a Chief Justice (regarded by many as perhaps the most powerful man in Washington DC)not to falter and worry about his legacy. After all as one might think - It's just one case, one law, one bill, one more slap in the face of our Founding Fathers who carved out this great document that has guided We The People" through so much heartache, turmoil, and desperation. Where would be be today without the Constitution - nonexistent.
I spoke today with a dear friend of mine who is a lawyer, Con law professor, very good friend of Roberts, Scalia, Alito, and Thomas. He thinks that Roberts move was not a move away from conservatism and the strict interpretation of the Constitution but rather a move to but the decision in the hands of the citizenry. My friend believes that the vote was in reality 4-1-4 as Professor Amar from Yale has said. I don't know the learned professor at all, but I do know my friend.
I just don't know. If Roberts was emerged in an elaborate conspiracy; to what end. And a conspiracy of this size and scope for one person to plan and execute it boggles the mind.
I know about conspiracies. One they seldom work when exposed to the light of day. And second they never work when conspirators are large in numbers. Any conspiracy of one stands a chance of success as conspiracies go.
I wait your analysis later this week. Maybe I'll figure out what I think happened from my lay view.
Have a good evening to all.
Defeat Obama, Elect a majority of Republican Senators, retain a majority of Republican Representatives and we will be rid of Obamacare and no more trying to figure out the turncoat, Roberts.
ReplyDeleteI once had an attorney tell me that the best way to confuse any subject was to put 2 lawyers in the same room discussing it. What must it be like to have 9 justices all discussing the same important subject and most of the time not budging from their identifiable position.
ReplyDeleteChief Justice Roberts must be one of two persons:
1. The smartest man/jurist in the room at the Supreme Court. Scalia may have some other point of view on that
or
2.He is a turncoat and simply nothing else.
To write down all the possible inter/connected/intertwining plot possibilities would take hours. Is he really capable of that much manipulation of others all in such a short period of time.
I've heard John Roberts described as - "A man who play chess while others ar playing checkers".
Is all the whys and wherefores, and how comes really the point that should be taken away from the verdict this past Thursday or is the important issue the banning together of all the people who are interested in defeating Obamacare totally and once and for all. Everyone on all sides should be welcoming everyone interested to come together and act for the good of the country. Maybe a coalition can only cover Obamacare. That's fine House and senate races remain open to partisan politics as usual.
Maybe a motto could be "Together We All Win"
Talk with you all later.
Thank you again Casey Pops
Off subject but California now has 2 cities filing bankruptcy.
ReplyDeleteNot good