The Volokh Conspiracy: "Perhaps, as Rick Hasen suggests, he’d rather save his political capital for the affirmative action and voting rights cases that are coming up, especially since he found a way to give the “right” a partial victory in his commerce clause reasoning, and to limit the Spending power."
'via Blog this'
How does bucking the majority of Americans' wishes on this issue help Roberts save the court's political capital?
13 comments:
Apparently Roberts has talked about how he thinks 5-4 splits along ideological lines aren't good for the court. I can see how going against the grain here could give him something to point to when he votes against the liberals in the future.
It does seem strange, but maybe he's seriously concerned about the court's image.
Hmmm. I guess that's an argument. But one vote deviating from partisan lines to save a statute that most people wanted declared unconstitutional doesn't seem to me like it saves much political capital.
Not to mention I think its lame to care more about the clout of the court than adherence to principle, if that is, in fact, what is going on.
One law professor I heard on the news (sorry I don't remember who) was certain Roberts cared more about the legacy of the court than the particulars of the case.
I agree it's a pretty disingenuous approach for a judge to take. I'm not saying it's true, but I am pretty baffled.
Yeah. what happened to calling balls and strikes!
He decided umpires were under-appreciated and needed a bit more attention.
Two quotes from a CNN article (http://www.cnn.com/2012/06/28/politics/supreme-court-obamacare-roberts/index.html?hpt=hp_c1):
"'Had the court ruled as the four dissenters would have had it -- in a 5-4 decision, red versus blue -- that the signature act of a Democratic administration was unconstitutional, I think that would have been a very serious threat to the legitimacy of the court,' said Timothy S. Jost, a professor at Washington and Lee University School of Law in Washington."
"Neal Katyal, a professor of law at Georgetown University in Washington, said that Roberts, 'more than almost any justice on the court today, appreciates the institutional role of the Supreme Court and American democracy. He's a student of history, and I think today's decision was a really resounding reflection of the chief justice's values, which are (that) law is not just politics and the Constitution is not just politics, and we should think about decisions impartially and dispassionately and come to the right ones.'"
I don't see how the oddity of this ruling can be seen as Roberts casting aside partisanship...the logic is just too strained. I can see the how Jost's opinion could be true. Which would mean Roberts did the opposite of deciding "impartially and dispassionately."
Right. Katyal has it exactly backwards. As Althouse pointed out, if you're thinking about the "institutional role" of the court you are not thinking about the law logically, but thinking about politics. Caving to pressure about the institutional role of the court is putting politics over principle and the law.
On the other hand, I've heard that it is quite rare for the court to overturn an act of congress and that their goal is to try to find ways to uphold laws. I guess it's possible that Roberts was just taking that responsibility very seriously.
Not being familiar with the tax arguments, I'm allowing for the fact that the 4 conservative justices were wrong and Roberts was right.(The liberals on the court give no indication that they think there are any limits on the federal governments power, so it seems to me like their opinions cannot be squared with the structure of the constitution and are irrelevant)
So that could be correct. Although it seems unlikely because of how the dissenters voted and also because of how it was argued. If the tax argument was good it seems like it would have garnered at least one more vote, and would have played a bigger role in the debate. But most commenters gave it pretty short shrift.
But doesn't the defense choose which arguments to spend their time on? If so, couldn't they have largely avoided the tax argument not because they felt it didn't have merit but because they felt it wasn't politically expedient?
Not following you here. Who do you mean by "defense." The Obama administration?
Yeah. You said, "If the tax argument was good it seems like it...would have played a bigger role in the debate." But it's the Obama administration defending the law in court right? And they're the one's who chose to focus on the commerce clause. Their reasons might not have been because of the merit of the tax argument.
They made both arguments, but they led with the commerce clause argument. Federal statutes have a hook at the beginning that says which power congress is using to pass the statute, and in this case it was the commerce clause. And the statute started off as being called a "tax" and was changed to a "penalty." I'm pretty sure they led with what they thought was their best argument, and only made the tax argument because they took the shotgun approach to defending this thing.
I guess you could say, the administration buried its best argument because it was politically unpopular or it made Obama look like a liar. But the argument was still made, so he looked like a liar regardless. I doubt the political fall out would have been much worse if he had led with the argument. Plus, There's also a huge political cost to losing the case as well, and burying your best argument could more easily lead to that result.
Finally, while questioning does sometimes stay on a topic until the arguing lawyer moves the topic to another argument, judges can ask whatever questions they want. No one really asked questions on the tax issue. If that was the closest issue, it seems like the judges would have had some burning questions on it.
And, as you point out, if this is really a tax how did Roberts get around the anti-injunction act?
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