The Occasional Observer

As I mull over the phenomenon of "textualist/originalist" jurists drifting to the left (and/or upward, for MB's benefit), it occurs to me that Ed Burns explained it perfectly in the Brothers McMullen. 


After her first tryst with the married Jack McMullen, temptress Ann asks him if he's ever cheated on Molly before.  "No," he replies.  Ann: "You won't find it so hard next time."  

Yes, John, you will be feted by the Washington Post, the President, and the Ivory Tower crowd today.  It will stroke your ego to ecstasy.

You won't find it so hard next time.

Strong ad or not?  What say you, contributors?

Liberal legal writers and MSM outlets are out in force today.   Hailing Roberts the Great.  Roberts the Wise.  Roberts who Saved the Court.

Other left-wing/statist Illuminati who have offered congratulations for Roberts "coming of age":

Laurence Tribe
Bill Press
Jeffery Rosen

Call me a conspiracy theorist, but this whole business of withholding documents and executive privilege smells like a trap to me.  I can see the documents getting released in October with little or nothing of importance in them to make the GOP house look foolish.  I'm just saying...

A strong GOP nominee for POTUS would be a slam-dunk winner, but I think even Romney has a very good chance of winning now.  The Senate is where the GOP needs to concentrate now. Here's the picture.

OK, so this blog didn't win an award, per se, but our very own Strawberry Girl did place in a writing contest over at WordPress.   On her own blog.

Why she no write here ever?

Why this blog always ignored in contests?

jk...
Congrats L&L!

The final word on this flawed decision, and it comes from the dissenting Justices.  The final nail in the coffin of CJ John Roberts as unmoored and unreliable:

Chief Justice John Roberts held in his majority opinion today that Obamacare's individual mandate may be considered a constitutional tax rather than an unconstitutional mandate. 

Justices Scalia, Kennedy, Thomas, and Alito forcefully disagree with Roberts in their dissent:

"[W]e cannot rewrite the statute to be what it is not," the four Justices write. "[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a 'penalty.' Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a 'penalty.'" 

The dissenting Justices also argue that "judicial tax-writing is particularly troubling," since the Constitution requires tax bills to originate in the House of Representatives, "the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off."

I always feel like I am on firm ground when my political read of a situation lines up with Krauthamer's, and in this case it does, almost completely.  While he's more measured and understanding of the CJ's predicament than I am, he sees the same tension between his judicial philosophy and insitutional prerogatives (fears?).

While I thought it more likely than not that the Supreme Court would overturn the Individual Mandate in PPACA, I was hardly confident. Arriving at work this morning, my boss told me not to worry. Either the Court would throw out the mandate, he told me, or they would invalidate the whole bill. I told I was far less confident. I remember, all too well, Casey v Planned Parenthod.  Kennedy switching his vote at the 11th hour, welching on conservatives. Conservative justices always seem to flinch when all the chips are down. Liberal justices never do.

From their liveblog of this morning's events:

10:32 Amy Howe:

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.