Bench Memos - National Review Online

Bench Memos - National Review Online: "First, and most obviously: He was unwilling to faithfully apply the Constitution in one of the most important cases, if not the most important case, he will ever decide. Yes, I know, he took the conservative/Burkean step of applying the doctrine of constitutional avoidance, and found what he believed to be a “fairly possible” solution that would avoid striking a major federal statute. But here is a question for my friends who make that argument: Would you have done the same or would you have sided with the dissenting justices? Why? The bottom line is that he took a position that his conservative colleagues, three of whom consider themselves originalists, refused to join even in part."

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The Volokh Conspiracy

The Volokh Conspiracy: " Indeed, some of the pro-Roberts leaking actually reinforces the notion that the latter was the reason for his switch. For example, if it is true that some two-thirds of what eventually became the dissenting opinion was initially drafted by Roberts, that makes it more likely that he had a strong belief that the mandate is unconstitutional. I doubt he would have taken the time to write a long and detailed opinion invalidating the mandate if he were not pretty clear in his mind that that was the way he intended to vote."

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Bench Memos - National Review Online

Bench Memos - National Review Online: "I can’t speak for all of the chief justice’s critics, but I can assure Brooks that my own frustration is about a lot more than the majority’s failure to rid us of a bad law. It is about the majority’s failure to rid us of an unconstitutional law."

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hear, hear.

Bench Memos - National Review Online

Bench Memos - National Review Online: "But what does Crawford actually claim to know?  Just the following:

that Roberts held one view in March, and a different one in May;
that one or more of the four conservative justices, notably including Kennedy, tried to win him back to their view;
that a month of trying to persuade him failed;
that Chief Justice Roberts “pays attention to media coverage.”
That’s it."

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Well, we know the conversation was described as lobbying and arm-twisting by the sources. Those words to not conjur the picture of a principled debate about the substance of the law. We also know that Roberts was asked about why he changed his vote and gave an unsatisfactory answer. We know there was an extensive public lobbying effort by people like Patrick Leahy just around the time Roberts was, in fact, going squishy on his prior decision.

And we also know that his opinion is hard to swallow in some respects. He says the ACA is not a tax for anti-injunction purposes--because it uses the "penalty language."  But apparently it was a tax for constitutional purposes. We know that his opinion doesn't deal with the fact that taxes must originate in the house for political accountable branch. We know that his opinion doesn't address the serious and difficult direct tax issue.

I'm not saying its a slam-dunk case, and I find it sad and disappointing conclusion. But you start to see a picture of a justice that's more concerned with the politics of a decision than the soundness of his interpretation. Let's hope this is a one-case lapse of judgment.

Blogger: Althouse - Post a Comment

Another Comment:


Blogger: Althouse - Post a Comment: ""Once it emerged that Roberts would rely on the taxing power, there was 'fair amount of give-and-take with Kennedy and other justices,' that one justice described as 'arm-twisting.'"

I wonder what this arm-twisting sounds like. Does it sound like "You, Kennedy went along with a similar statutory interpretation in case X." Or does it sound like "this is going to be a huge public relations disaster if you don't vote with me." Some clerk or justice can provide vital evidence on whether Roberts actually believes his opinion or was just faking it for the sake of politics."

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The Volokh Conspiracy » My Politico Post Assessing the Individual Mandate Decision

The Volokh Conspiracy » My Politico Post Assessing the Individual Mandate Decision: "It is not yet clear whether Roberts really was motivated by such considerations, and we should keep an open mind on the subject…. But if reputational concerns really were at the heart of his switch, it is very sad that the highest-ranking judge in the land valued reputation more than his duty to enforce the Constitution…."

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The Corner - National Review Online

The Corner - National Review Online: "Roberts, who wanted to cement his reputation as a sober and judicious jurist, through his Hamlet-like deliberations ended up seeming incoherent, tentative, and unsure of himself. And if it’s true that rumors of Roberts reconsidering his vote swirled in Washington prior to the final outcome, and that such perceptions of hesitation prompted renewed venom and pressure — from not just the media, but from those such as Senator Leahy (who had voted to confirm Roberts) on the floors of Congress, and the president himself (who attacked the Court even earlier in his State of the Union address) — then the Court comes off as far more suspect after the opinion than before. Everything Roberts wished to prevent he ensured."

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Liberals tend to attribute political motives to conservative judges when they vote. I've always though this was wrong--that the conservative justices really do care about following the constitution as they understand it. I can point to a number of judicial opinions by Scalia that show he voted the opposite way you would presume he would vote if he was simply voting his political preferences.

But then this case comes along and confirms that, at least in some cases, the justices really do vote based on their politics or outcome preferences.

What Was Roberts Thinking? | Hoover Institution

What Was Roberts Thinking? | Hoover Institution: "The original intuition was that general welfare of the United States only covered standard public goods, leaving all welfare functions to the state. That position was obviously abandoned.  But in its place, the rule was that the taxation power could never be used as an indirect form of regulation that Congress could not impose directly. That is exactly the argument that Chief Justice Roberts holds for the Commerce Clause, but at no point does he address the connection between the two clauses."

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NFIB v. Sebelius

For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubl-ing. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1.  That is to say, they must originate in 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.  The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.”  United States v. Munoz-Flores, 495 U. S. 385, 395 (1990).  We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty.  See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301.  Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.

NFIB v. Sebelius

Our cases establish a clear line between a tax and a penalty: “‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” United States v.  Reorganized CF&I Fabricators of Utah, Inc., 518 U. S. 213, 224 (1996 (quoting United States v. La Franca, 282 U. S. 568, 572 (1931)).  In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty.  But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax.  We have never held that  any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax.   Child Labor Tax Case, 259 U. S. 20, 38 (1922).



So the question is, quite simply, whether the exaction here is imposed for violation  of the law.  It unquestionably is.

The Volokh Conspiracy

The Volokh Conspiracy: "gain, I wondered, why would defenders of the law be personalizing their focus so aggressively and harshly on a man more likely to be the sixth than the fifth vote for their side?

Now, though, CBS News tells us that the Chief Justice was the defenders’ only hope for a fifth vote — and one that started looking “gettable” right around the time of Senator Leahy’s remarks.  Suddenly, the Senator’s remarks look a lot less foolhardy.  In fact, they look like a miraculously prescient and well-timed gamble.

So well-timed and prescient a gamble that I can’t help wondering whether it was a gamble at all.

I’d like to be wrong. A leak about Court deliberations, especially a leak that went only to one side in a pending case, would truly be a scandal."

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The Volokh Conspiracy » Who Leaked?

The Volokh Conspiracy » Who Leaked?: "The other primary possibility is one or more of the Justices themselves. On one hand, Crawford appears to have particularly good relations with several of the Justices, especially among its more conservative members. Here’s Crawford interviewing Justice Thomas, and here’s Crawford interviewing Justice Scalia. On the other hand, leaking so directly and so soon after the decision is out would be sure to strain the relationships among the Justices. If a Justice was directly involved, it could be something that has significant negative consequences for the Justices’ collegiality and working relationships going forward."

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My guess? Scalia or Kennedy. My guess is that one of them is pretty mad.

Roberts switched views to uphold health care law - CBS News

Roberts switched views to uphold health care law - CBS News: "Roberts then engaged in his own lobbying effort - trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as "arm-twisting.""

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lame.

Roberts switched views to uphold health care law - CBS News

Roberts switched views to uphold health care law - CBS News: "Roberts had begun to focus on a different argument to uphold the law and the mandate's penalty by defining it as a tax. That strained argument had received almost no attention in the lower courts, which had uniformly rejected it. It was seen as a long-shot by the law's supporters."

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Roberts switched views to uphold health care law - CBS News

Roberts switched views to uphold health care law - CBS News: "It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation."

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He could have just changed his vote. But to me, this seems seems more consistent with Roberts giving in to political pressure.