Obamacare is upheld by the U.S. Supreme Court!

Today, the U.S. Supreme Court voted to uphold President Obama's Patient Protection and Affordable Care Act, which will, if fully implemented, pave the way for 30 million uninsured Americans to receive the essential healthcare services that the more privileged among us already enjoy. In doing so, the Court reaffirmed one of our most enduring and foundational guiding principles, that government should and must be there to provide services to those who cannot provide for themselves. By upholding President Obama's healthcare reform, the Court has bolstered the notion that government should not be reserved for the powerful and well-connected, and that it has a fundamental role in giving voice to the voiceless and serving those who would otherwise suffer in silence. By upholding healthcare reform, the Court acknowledged that they recognize that. I'm not a partisan ideologue, so although I support the President, I don't much care about his personal legacy. What I do care about is the 30 million people who need someone to be their champion and who are now one step closer to having the healthcare that they deserve because of President Obama's resolve and Chief Justice John Roberts' courage. We are not, as some of my more conservative friends suggest, islands unto ourselves. Our individual decisions and choice are not ours alone. They affect others. A society which champions an extreme version of individualism at the expense of the community can and should not stand. We all need each other. None of us can do it alone.

http://news.yahoo.com/blogs/ticket/s...135554880.html

I was just going to start a post on this.

Actually, I was hoping they would rule against it, but it is hilarious to watch Mitt Romney flip flop some more. He did RomneyCare in Massachusetts, which is now Obamacare nationwide and his entire objection to it was it is unconstitutional for it to be done on the federal level, not the idea itself, which he implemented as governor. But he is still opposed to it after the SC decision because...????????

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It reminds me of a toilet paper on the trees
- Paula

Number of people surprised I have a reply to this: zero!

True, but we can already assume it won't be fully implemented. The Court struck down, by a 7-2 vote, the Medicaid defunding threat the Federal government wanted to use to compel states to participate in the expansion. Seeing as how 26 states were involved in the suit in the first place, and 19 Governors have stated they do not wish to participate, it seems likely that a significant chunk of the states will opt not to expand the program.

It didn't do this at all. The Court doesn't work that way, nor is it supposed to. It merely denies or affirms constitutionality. Or at least, that's how it's supposed to work, whether all judges abide by it or not.

The ruling today is that the mandate can survive by viewing the penalty for not having insurance as a tax. A lot of people think this is dubious for lots of reasons (enumeration available on request), and it explicitly contradicts the President's previous statements and the rationale on which the law was sold to the public, too. But that's the extent of the decision. It doesn't hold this because of any enduring principle about providing services.

Even if it did, that wouldn't tell us anything about whether or not healthcare should be one of those services. And even if it did that, it wouldn't tell us whether or not those services have to include all the things that the law does, like paying for other people's birth control. The characterization of this law as a mere helping hand for people unlucky enough to become ill bears little resemblance to the bill in reality, which is far more sweeping. That was one of the specific arguments from Clement, who represented the states in oral arguments.

Yeah, see above. It doesn't say or do any of this. In fact, Chief Justice Roberts, who wrote the opinion, specifically says in the beginning that the ruling is not an endorsement of the law's merits, just of its legality. Which should go without saying, but is apparently a necessary thing to point out these days.

A debate worth having. But whether you support this or not, it ought to be obvious that such an expansion of basic human rights should be sold for what it is, as opposed to being presented as one thing but ultimately justified as another.

If a society decides that healthcare is a basic human right, and they want to pay for it to that end, then they should absolutely get it. But I think it's pretty clear that America is very conflicted about whether or not this should be the case, and massive entitlement expansions shouldn't be forced through. Previous entitlements like Social Security and Medicaid, whatever their ultimate merits, at least enjoyed broad public support and were fairly represented for what they were.

No arguments there. Though this is really just an argument for the existence of taxes, and not a complicated, far-reaching health insurance mandate.

Because he thinks the Supreme Court is wrong. Pretty simple.

Where Romney has to squirm is when he tries to make the case that the there's a noteworthy difference in policy or structure. But constitutionally, the distinction is clear. Such mandates are clearly constitutional at the state level.

As an Australian, I find it quite refreshing that Obama done this. However in Australia, we have major problems with Medicare. But, if Australia hadn't had Medicare I would be in debt about $150,000. I really couldn't say how much!

Number of people surprised I have a reply to this: zero!

Originally Posted by AKA23
Today, the U.S. Supreme Court voted to uphold President Obama's Patient Protection and Affordable Care Act, which will, if fully implemented, pave the way for 30 million uninsured Americans to receive the essential healthcare services that the more privileged among us already enjoy.

True, but we can already assume it won't be fully implemented. The Court struck down, by a 7-2 vote, the Medicaid defunding threat the Federal government wanted to use to compel states to participate in the expansion. Seeing as how 26 states were involved in the suit in the first place, and 19 Governors have stated they do not wish to participate, it seems likely that a significant chunk of the states will opt not to expand the program.

The Supreme Court merely said that Medicaid funding cannot be withdrawn if State's choose not to implement the reform. I am confident that if President Obama is re-elected, he will ensure that the expansion goes through, and that it is implemented. He will just have to find another way to do it that doesn't involve the withdrawal of State Medicaid funding. The Supreme Court upheld the ability of the federal government to fine people who choose not to purchase insurance, so even if the State's themselves choose not to implement it, the people themselves in each state will still have an incentive to comply, and a cost to not doing so.

Originally Posted by AKA23
In doing so, the Court reaffirmed one of our most enduring and foundational guiding principles, that government should and must be there to provide services to those who cannot provide for themselves.

It didn't do this at all. The Court doesn't work that way, nor is it supposed to. It merely denies or affirms constitutionality. Or at least, that's how it's supposed to work, whether all judges abide by it or not.

The ruling today is that the mandate can survive by viewing the penalty for not having insurance as a tax. A lot of people think this is dubious for lots of reasons (enumeration available on request), and it explicitly contradicts the President's previous statements and the rationale on which the law was sold to the public, too. But that's the extent of the decision. It doesn't hold this because of any enduring principle about providing services.

What you are saying is true. The Supreme Court did not explicitly state the underlying values and principles which support the decision, but it is logical to assume that these were persuasive and compelling reasons for the Court to uphold the reform. By choosing to construe the mandate as a tax, which wasn't even one of the main arguments the government used in support of the law, the Court found a way to uphold the reform. Chief Justice Roberts likely did that because he didn't want to be the one to stand in the way of 30 million people gaining health insurance. He's a conservative justice, not a liberal one. He very easily could have gone the other way. He didn't. He found a conservative way to support the reform.

Originally Posted by AKA23
By upholding President Obama's healthcare reform, the Court has bolstered the notion that government should not be reserved for the powerful and well-connected, and that it has a fundamental role in giving voice to the voiceless and serving those who would otherwise suffer in silence.

Yeah, see above. It doesn't say or do any of this. In fact, Chief Justice Roberts, who wrote the opinion, specifically says in the beginning that the ruling is not an endorsement of the law's merits, just of its legality. Which should go without saying, but is apparently a necessary thing to point out these days.

I think it's incredibly naive to say that these were not in the forefront of Roberts mind when he wrote his opinion. He is a conservative justice. He generally supports a conservative reading of the Constitution. The rest of the conservative Justices on the Court wanted to rule the entire healthcare reform act null and void as unconstitutional. It was a 5-4 ruling. Justice Roberts has never supported the liberal wing of the court in a 5-4 ruling. This was the first time since he joined the Court in 2005. It's pretty clear to me that Roberts found a way to uphold the law that was conservative. He very easily could have joined the dissent, ruled the mandate unconstitutional under the commerce clause, and struck the whole thing down. He didn't. He went out of his way to search for a conservative reason to uphold it. Yes, the opinion does not render judgment on the merits of the Obama health care reform, but by upholding it, it's unmistakably clear which side of the fence Roberts lies on this issue.

Originally Posted by AKA23
I'm not a partisan ideologue, so although I support the President, I don't much care about his personal legacy. What I do care about is the 30 million people who need someone to be their champion and who are now one step closer to having the healthcare that they deserve because of President Obama's resolve and Chief Justice John Roberts' courage.

A debate worth having. But whether you support this or not, it ought to be obvious that such an expansion of basic human rights should be sold for what it is, as opposed to being presented as one thing but ultimately justified as another.

If a society decides that healthcare is a basic human right, and they want to pay for it to that end, then they should absolutely get it. But I think it's pretty clear that America is very conflicted about whether or not this should be the case, and massive entitlement expansions shouldn't be forced through. Previous entitlements like Social Security and Medicaid, whatever their ultimate merits, at least enjoyed broad public support and were fairly represented for what they were.

This is actually not true. Social Security and Medicare were opposed when first passed. It was only after implementation and time had passed that these programs began to become sanctified by the general population.

Originally Posted by AKA23
We are not, as some of my more conservative friends suggest, islands unto ourselves. Our individual decisions and choice are not ours alone. They affect others. A society which champions an extreme version of individualism at the expense of the community can and should not stand. We all need each other. None of us can do it alone.

No arguments there. Though this is really just an argument for the existence of taxes, and not a complicated, far-reaching health insurance mandate.

Roberts didn't expand anything. He explicitly wrote that he was merely using the government's existing power to rule that a health insurance mandate was constitutional under the government's broad taxing authority to tax for the benefit of the general welfare. An expansion of government power would have been what the liberals wanted to do, which was to rule the mandate constitutional as a regulation of interstate commerce. Roberts explicitly rejected that justification. Therefore, your argument is flawed in that by ruling as Roberts did, he did not support any kind of "far-reaching mandate" or an expanse of government power. He did the opposite.
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I think you're confusing two parts of the law here; the Medicaid funding withdrawal threat was not to compel compliance with the mandate; it was to compel compliance with the Medicaid expansion. They're separate, even though they're both part of the bill.

I suppose the President may be able to find some other way to persuade all the states to opt-in to the expansion, but I'm not sure how. Threatening to defund them entirely if they didn't opt-in was far and away the most effective way of getting them to do this. I'm not sure what's left, other than a "carrot" approach rather than the "stick." But that could have significant ripple effects and end up contradicting a lot of the claims the bill was sold on about its overall cost and scope. But hey, they've already been contradicted on the "it's not a tax" stuff, so why not go for broke?

I don't think that's a logical assumption, no. And it's certainly not how judges are supposed to judge cases, by deciding if they like a policy and then working backwards to find some justification to allow for it.

Roberts didn't make the tax argument up himself, either (though whether or not he did is ultimately beside the point, anyway). The government didn't use the idea that the penalty could be construed as a tax in passing the legislation (because it wouldn't have passed), but it did raise the defense during oral arguments.

It really isn't. You say it's naive to think Roberts didn't have these are the "forefront" of his mind, but his own opinion goes out of its way to explicitly state otherwise. I guess you can speculate that he didn't mean what he wrote at all, but there's not much point in arguing with that level of random speculation. Especially when the only thing he said on the matter contradicts the idea.

I dunno where you're getting this idea from, but Social Security was passed in the House 372-33, and in the Senate 77-6. The bill that created Medicare and Medicaid passed 307-116 in the House and 70-24 in the Senate.

I don't think I said he did.

You're mixing up different parts of the argument. I said that the "no man is an island" stuff does not imply a far-reaching mandate. I didn't say Roberts' opinion doesn't.

Although the Supreme Court went for it, I don't believe it is a tax. It is a fine. Traffic tickets are taxes?

[quote=Yoda;822817]I think you're confusing two parts of the law here; the Medicaid funding withdrawal threat was not to compel compliance with the mandate; it was to compel compliance with the Medicaid expansion. They're separate, even though they're both part of the bill.

I suppose the President may be able to find some other way to persuade all the states to opt-in to the expansion, but I'm not sure how. Threatening to defund them entirely if they didn't opt-in was far and away the most effective way of getting them to do this. I'm not sure what's left, other than a "carrot" approach rather than the "stick." But that could have significant ripple effects and end up contradicting a lot of the claims the bill was sold on about its overall cost and scope. But hey, they've already been contradicted on the "it's not a tax" stuff, so why not go for broke?

I understand that the Medicaid funding withdrawal threat wasn't related to the individual mandate, but the idea that the States are going to all opt out, is I think, likely more bluster than anything else. The states were given a great deal of funding from the federal government to institute the expansion, so it's really not in the State's economic interest to refuse that funding. Without the funding, they are going to incur extra costs to pay for the care of those who have no health insurance. In addition, the States are going to have a lot of push back from hospitals to go through with the expansion, because hospitals are the ones who often have to pick up the tab for uncompensated care. Hospitals will put a lot of pressure on the States to accept that funding, and hospitals are a very powerful, and important, special interest, so there will be an incentive for State's to comply with what is in their economic interest already. It's one thing to object to something politically in order to gin up conservative opposition and solicit votes, it's another thing entirely to actually go through with rejecting funding that specifically benefits your state.


I don't think that's a logical assumption, no. And it's certainly not how judges are supposed to judge cases, by deciding if they like a policy and then working backwards to find some justification to allow for it.

You're not a lawyer, so you may or may not understand this, but the notion that justices merely decide cases by "reading the Constitution" and following it to the letter is completely ridiculous. That's just not how these cases are decided. Conservatives may like to make this argument that judges should merely read the Constitution and follow it, "like the Framers intended" but that is simply not how the law is made. In order to determine whether or not a policy is constitutional, a justice has to decide in part on the merits of proposed policy. They must consider its benefits and consequences, and analyze to what degree they are achieved or frustrated, before ruling something constitutional or unconstitutional. The Constitution itself is incredibly vague. Government has the power to regulate "interstate commerce," but what exactly is interstate commerce? Government has the power to tax, but what exactly is a tax? Government has the power to regulate for the "general welfare" but what constitutes the "general welfare?" The Constitution cannot be simply read literally and applied. Judicial interpretation is an art as much as it is a science. The nature of judicial interpretation dictates that a justice's own views, preferences and concerns enter into their decision making process. There is simply no other way to read the law. Not only that, so many issues the Court reviews are ones of "first impression," which must be decided on their own merits because the issues these cases raise have never been ruled upon before, and often were not within the purview of what the Framers could or could not have intended two hundred years ago.

Roberts didn't make the tax argument up himself, either (though whether or not he did is ultimately beside the point, anyway). The government didn't use the idea that the penalty could be construed as a tax in passing the legislation (because it wouldn't have passed), but it did raise the defense during oral arguments.

The argument that the mandate fell within the taxing power was raised by the government, but it was tangential to the government's main argument, which focuses very strongly on the commerce power. Not only that, very little of the oral arguments discussed it, and the commentary by the Justices on this point were often made in jest and were not subject to the serious scrutiny on display in other parts of their argument. I'm not sure if you listened to the oral arguments, but take it from me, because I did, the central argument had nothing to do with the government's taxing authority. Justice Roberts used a minor argument to uphold the reform and completed bypassed, and ruled unconstitutional, the main argument constitutional scholars and the government itself in its arguments before the court made. That is unprecedented, at least in modern judicial history.


It really isn't. You say it's naive to think Roberts didn't have these are the "forefront" of his mind, but his own opinion goes out of its way to explicitly state otherwise. I guess you can speculate that he didn't mean what he wrote at all, but there's not much point in arguing with that level of random speculation. Especially when the only thing he said on the matter contradicts the idea.

Roberts never explicitly stated that he didn't agree with or support Obama's healthcare reform as a matter of policy or morality. He explicitly refused to render a judgment publicly on that. That's very different than explicitly stating otherwise or contradicting the arguments that I advanced. I'll say it again. Justice Roberts has never joined the liberal majority in a 5-4 decision in his entire history of being on the Court. Do you really think the fact that he chose to do so this time was a coincidence?

Roberts has in the past stated that he was concerned about the legacy of the Supreme Court, and it's legitimacy, and wanted to avoid the appearance that its decisions were politically motivated. I think a fair reading of his history as a justice, made in view of the concerns that he expressed repeatedly throughout his tenure, motivated him to uphold the healthcare law. He didn't want to be the justice who wrote the majority opinion that struck down a President's signature domestic achievement that helped pave the way for the availability of affordable healthcare for thirty million Americans. He is a conservative justice, but he wanted to uphold the healthcare law and he did.

Sure, could be. But if it is bluster, they're still blustering. Loudly. Gun to your head, do you think every state opts-in? I don't.

I'll have to check, but I don't believe that's how it works. The funding is specifically to pay for adding more people to the rolls, so I'm not sure that's a gain so much as a reimbursement. Also, they don't have to expand Medicaid if they reject the funds, so I'm not sure what extra costs you're referring to, unless you're talking about some indirect, ancillary effect of the other parts of the law.

But that's dealt with by the mandate, not by Medicaid expansion, no? I still feel like you're combining the two.

Agreed, which is why the key question is whether or not it's going to benefit their state. Again, it's not just money for doing something fiscally neutral, it's money for incurring more costs.

I'm not suggesting that they cease to be human beings, or become perfect jurisprudential androids when they put those robes on. I'm just saying you can't ascribe all sorts of random, lofty motives that aren't evident from the opinion, particularly when the opinion specifically states that it isn't an endorsement.

I can save you a lot of typing: you don't need to convince me that some of these questions are very tough, and that we need judges to sort them out. I'm on board with that. Nor do I think anyone is saying that every question is obvious just by literally reading the Constitution.

However, we're well beyond mere interpretation. I don't think you can seriously argue that it hasn't been contorted beyond even the slightest hope of preserving its original meaning. At this point, the debate really is about whether or not we should be able to make the Constitution mean what we want it to mean, and not how far we can reasonably bend some phrase. We're way beyond bending. The thing's broke.

I want people on the other side of this issue to own their position: they think the Constitution is out of date and we need to be continually rewriting it on some level. That's the argument here.

I think The Constitution is an exceptional document, and specifically written to be enduring and provide a general outline. I think it was forward looking enough, and understood the nature of power well enough, that its general outline still applies. If some people think otherwise, they should come out and say so more often, rather than try to suggest that what they want to do is just a slight reinterpretation of this or that. And I have to raise my eyebrow in any debate where one side is being completely straightforward about their position, and the other is obfuscating it.

Yup. But I'm not sure why this would matter. If one of the arguments "performs" better in the briefs than in the oral arguments, then so be it. I'm unaware of any judicial philosophy that would ignore that just because it wasn't sufficiently emphasized during oral arguments. I'm no expert, but all I hear about this suggests that the briefs matter far more.

I did. Clement was tremendous, wasn't he? I thought Carvin deserved more credit, too, for the distinction between health care and health insurance, and I was disappointed that that argument wasn't talked about more.

It's unprecedented that one of the secondary or tertiary claims in oral arguments is the one that swayed a single justice? I find that incredibly hard to believe.

Sure it does. You say he did it because he thinks the law is important, necessary, etc. He specifically said his opinion was only one of Constitutionality. You can believe him or not, but his opinion goes out of its way to state that he's not passing judgment on the bill's merits.

You could ask whether the first time--whatever case it ended up being--was a coincidence. It had to happen sometime. And his "entire history of being on the Court" is a grand total of seven years, and only about a quarter of the cases decided has come down to 5-4 votes.

But look, I don't mind you making educated guesses about Roberts' ruling. But go back and read your initial post. It's packed with random speculation, all of which ascribes to Roberts' some sort of higher healthcare calling about propping up the needy. The idea that he cares about the court's reputation and is reticent to strike down major legislation is a totally reasonable interpretation of his opinion. But you went way beyond that:

"government should and must be there to provide services to those who cannot provide for themselves"
"has bolstered the notion that government should not be reserved for the powerful and well-connected"
"has a fundamental role in giving voice to the voiceless and serving those who would otherwise suffer in silence"

This is ascribing all sorts of specific, sweeping motives, and is wildly different from the far more measured arguments about judicial restraint and the court's reputation that you're making now.


By the way, what's up with the Social Security/Medicare stuff? Because that's kind of a big deal. If you want to talk about history and precedence, the fact that legislation this sweeping has never been passed by such insanely narrow margins (both in the legislature AND in the courts) is a good place to start. On two separate occasions (Olympia Snowe and John Roberts), a single person could have changed their mind to stop the bill from becoming law.

It's a good rule of thumb that broad change should have broad support, but that's manifestly not the case here. This was positively rammed through, not just logistically, but even in the fact that it was sold on one argument and upheld by the courts on another. That's pretty crappy.

Originally Posted by AKA23

Also, they don't have to expand Medicaid if they reject the funds, so I'm not sure what extra costs you're referring to, unless you're talking about some indirect, ancillary effect of the other parts of the law.

The extra costs that I am referring to are the costs incurred by doctor's and hospitals from uncompensated care that is given to people who do not purchase insurance and then seek to get emergency care. An additional extra cost is incurred when people do not get the necessary preventative care to detect diseases early and prevent those diseases from either becoming contracted or worsening. The Obamacare legislation helps to address this problem by mandating that preventative care be given at little to no cost, and helps to ensure that those who would show up at the emergency room to get high-cost, uncompensated care will be greatly reduced because the legislation helps to ensure that the vast majority of these people will have insurance.

Originally Posted by AKA23
In addition, the States are going to have a lot of push back from hospitals to go through with the expansion, because hospitals are the ones who often have to pick up the tab for uncompensated care.
But that's dealt with by the mandate, not by Medicaid expansion, no? I still feel like you're combining the two.

No, it's not entirely dealt with by the mandate, because the penalty to enforce the mandate only applies if you have the financial means to purchase insurance. If you fall below a certain threshold, the mandate does not apply. The Medicaid expansion was designed in part to ensure that those who would not be covered by the mandate would still be able to get insurance at a cost that was affordable. By failing to expand Medicaid to cover these people, there will be a large gap between those who are covered by the mandate, and those who are not. This is why these are really not two separate issues, as you are suggesting that they are. The mandate and Medicaid expansion are both designed to address the same problem in different ways. They address different parts of the problem in their own way, but one or the other is not sufficient to accomplish the larger goal. So, by saying that one is dealt with by the mandate, and the other is not, you are saying something inaccurate because without the Medicaid expansion there will be a large group of people who will not have insurance and who will still go to the hospital for uncompensated care.


I want people on the other side of this issue to own their position: they think the Constitution is out of date and we need to be continually rewriting it on some level. That's the argument here.

I think the Constitution's general principles are enduring and should guide us. I don't think the Constitution should be continuously rewritten to say whatever we want it to say. I don't think I ever said that, so I'm not sure why you are addressing me in this matter, but I do think that the Constitution has broad outlines and principles, not absolutes. How those principles should be applied in modern society is a matter of interpretation. It has to be. Do I think that the Constitution should merely be cast aside and re-invisioned every few years to fit the whims and preferences of the populace at any given time? No. But do I think the Constitutional principles need to be re-evaluated and re-interpreted as new issues come before us, the society changes, and we face new challenges and new problems? Yes. So, in some ways, I do think the Constitution needs to be flexibly interpreted.

I think The Constitution is an exceptional document, and specifically written to be enduring and provide a general outline. I think it was forward looking enough, and understood the nature of power well enough, that its general outline still applies. If some people think otherwise, they should come out and say so more often, rather than try to suggest that what they want to do is just a slight reinterpretation of this or that. And I have to raise my eyebrow in any debate where one side is being completely straightforward about their position, and the other is obfuscating it.

The "strict constructionists" really aren't saying anything more straightforward than the evolving constitutionalists. In fact, in many ways, I think a case can be made that the opposite is true. At least those who are more liberal in their interpretation acknowledge that the Constitution is a living and breathing document that should and must adapt to new problems and new situations. The strict constructionists, like Justice Scalia, are being disingenuous too, if you want to use these loaded terms. Justice Scalia imposes his own values on the society too when he writes his opinions. He pretends that he doesn't, and prefers to hide behind notions of "limited government" and "preserving the original intent of the Founders" but in reality, he's using his own judgments and values to determine what is constitutional and what is not. That is what judges do. That's why they're on the Supreme Court. That's their job. To just pretend that none of this happens, as the "strict constructionists" seek to do, is ludicrous.

Originally Posted by AKA23
the central argument had nothing to do with the government's taxing authority. Justice Roberts used a minor argument to uphold the reform and completed bypassed, and ruled unconstitutional, the main argument constitutional scholars and the government itself in its arguments before the court made. That is unprecedented, at least in modern judicial history.
It's unprecedented that one of the secondary or tertiary claims in oral arguments is the one that swayed a single justice? I find that incredibly hard to believe.

I am not aware of any case in modern judicial history where an issue of this magnitude, or even close to it, was decided by the Justice searching for a reason to uphold a law as constitutional, even though that rationale was barely even argued by the government. No. If you are, let me know, because I'm not aware of it.

Originally Posted by AKA23
I'll say it again. Justice Roberts has never joined the liberal majority in a 5-4 decision in his entire history of being on the Court. Do you really think the fact that he chose to do so this time was a coincidence?

You could ask whether the first time--whatever case it ended up being--was a coincidence. It had to happen sometime. And his "entire history of being on the Court" is a grand total of seven years, and only about a quarter of the cases decided has come down to 5-4 votes.

It is true that he has only been on the Court seven years, but in that seven years, the Court has decided hugely important issues, including "Citizens United," which was about the most polarizing constitutional issue in recent memory before healthcare. The Court decided whether to uphold bans on partial birth abortion, whether juveniles could be executed, whether they could be given mandatory life sentences, whether military tribunals were Constitutional, the rights of suspected terrorists captured on US soil. All of these were opportunities for Roberts to cross to the other side of the aisle to rule with the liberals. He didn't. Not once. I think you're grossly underestimating how consequential this decision was, and how many opportunities Roberts had. Keep in mind, the 4 dissenters wanted to throw out the entire healthcare reform bill. It was Roberts that saved healthcare from complete and total destruction. That's huge. To think that he did that not thinking about any of the moral issues involved, or the benefits and consequences of this legislation, is, in my view, extremely unlikely, no matter what he may or may not admit to in his opinion.

But look, I don't mind you making educated guesses about Roberts' ruling. But go back and read your initial post. It's packed with random speculation, all of which ascribes to Roberts' some sort of higher healthcare calling about propping up the needy. The idea that he cares about the court's reputation and is reticent to strike down major legislation is a totally reasonable interpretation of his opinion. But you went way beyond that:

"government should and must be there to provide services to those who cannot provide for themselves"
"has bolstered the notion that government should not be reserved for the powerful and well-connected"
"has a fundamental role in giving voice to the voiceless and serving those who would otherwise suffer in silence"

This is ascribing all sorts of specific, sweeping motives, and is wildly different from the far more measured arguments about judicial restraint and the court's reputation that you're making now.

I think that you have a good point here. For the most part, my reaction was an emotional one, not an in-depth analysis. I don't think I ever said that these were Roberts motivations for upholding the law. This is what the decision meant to me. It reaffirmed in my mind the importance of these principles. Whether Roberts believed that or not, I don't know, and you don't either, but I think it is naive and illogical to believe that he did not think about them at all, and that they didn't, in some way, factor into his decision.


By the way, what's up with the Social Security/Medicare stuff? Because that's kind of a big deal. If you want to talk about history and precedence, the fact that legislation this sweeping has never been passed by such insanely narrow margins (both in the legislature AND in the courts) is a good place to start. On two separate occasions (Olympia Snowe and John Roberts), a single person could have changed their mind to stop the bill from becoming law.

It's a good rule of thumb that broad change should have broad support, but that's manifestly not the case here. This was positively rammed through, not just logistically, but even in the fact that it was sold on one argument and upheld by the courts on another. That's pretty crappy.

I agree with you that broad change should have broad support in most cases, but change often doesn't come in the neat little package that you or I might feel most comfortable embracing. "Brown v. Board of Education" was tremendously unpopular. "Loving v. Virginia" which struck down bans on interracial marriage was tremendously unpopular, but they were the right calls. I think healthcare will come to be seen in the same way, with time.

Not only that, it's one thing to agree in principal that there should be bipartisan cooperation for large-scale social change, but in my view, it's very difficult to accomplish that change when conservative Republicans never expressed any interest in working with this President. Time and again, Obama reached out an olive branch to the Republicans, and time and again, they refused to take it. Even this healthcare reform was modeled on Republican ideas that were embraced by Republicans for years, including your own nominee for President. I agree with you that it is better to accomplish these things in most cases working together, but I don't see any evidence that the Republicans presented their own plans for reforming the healthcare system. All they did was criticize everything Obama did, but at some point, they need to offer their own proposal if they want to be part of the solution. They didn't. The only Republican plan on the table has been health savings account, which in principle are a good thing, but that's simply not going to insure 50 million people who have no healthcare. The Republicans have stated publicly they have no plan to do that, so I don't know how you expect President Obama, or any Democratic leader, to have worked with them to institute a plan that they don't have, especially when they have stated repeatedly throughout his presidency how they would make it their mission to defeat him in every way conceivable.

Looks like AKA 23 was right:


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FILE - In a Sept. 29, 2009, file photo Chief Justice John Roberts sits for a new photograph at the Supreme Court in Washington. (AP Photo/Charles Dharapak, File)



Fresh evidence has surfaced regarding suspicions that Supreme Court Chief Justice John Roberts switched his vote on health care reform.
CBS News reports that Roberts initially sided with the court's four conservative members to overturn President Barack Obama's individual mandate. After changing his mind, Roberts fended off a month of efforts to sway him back to the other side, headed by Justice Anthony Kennedy.
"He was relentless," a source told CBS regarding Kennedy's push. "He was very engaged in this."
In addition to private jostling within the Supreme Court, it appears that the public spotlight was a factor. The CBS report points to how Roberts pays attention to media coverage. With his court's reputation on the line, one source suggested that the chief justice became "wobbly" in the eyes of his conservative counterparts.
As the court made its historic Affordable Care Act ruling on Thursday, suspicions arose regarding Roberts being scared off by Justice Antonin Scalia. The Daily Beast highlighted one theory from a reader who clerked on an appellate court.

He certainly didn't trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.

Coupled with that opinion were details that pointed to some oddities within the formatting of Scalia's dissent, via The Volokh Conspiracy.

Notice also that his response to Roberts is tacked on at the end, rather than worked into the body of whatever he was writing (see page 64 of his dissent). For example, one would have expected Scalia to directly take on Roberts’ application of the Anti-Injunction Act, but his brief section on that act only mentions what “the Government” argues (see pages 26-28).

The 5-4 ruling in favor of preserving the mandate may have also fit into a bigger picture. HuffPost blogger Adam Winkler noted that Roberts' heaviest interest is not health care, writing that the chief justice may want to "preserve the Court's capital to take on other big issues."

I guess you haven't been reading the posts; AKA's initial statements were all about the merits of the policy, standing up for the little guy, et cetera. Since then he's shifted his claim to be merely that Supreme Court Justices can and will let all sorts of other things effect their judgement--which I promptly agreed with here, before pointing out that it was a very different claim from the first one.

I'll respond to AKA's latest tomorrow. There's not a lot left else to talk about, since he seems to agree with what I'm saying about both consensus for broad policy and how much we can read into this. But I want to explore the "living document" idea further.

Burger used to switch sides if he saw the other side had the majority so he could assign tne opinion to himself and control the ruling.

Meanwhile in Scotland, The NHS is not suffering from Conservative changes from London which are trying to turn our Health Service into something The Republicans would relish in.

Off-topic, but I'll bite: why? Because it's insolvent?

__________________
"The greatest danger for most of us is not that our aim is too high and we miss it, but that it is too low and we reach it." - Michelangelo.

Again, this is the mandate, not the Medicaid expansion. The extra money given to the states is not a reward, its a reimbursement for increasing their Medicaid eligibility. It's not money to pay for people affected by the mandate. This makes it, at least partially, a simple cost/benefit analysis about which will be more. Though on top of that, you have the mere principle of the thing. The government could have a program that's just piles of money the states give away to random citizens, but you could make a strong ethical argument that they should refuse it because it's a terrible idea, even if it would temporarily help their citizens. It's not as simple as "do we want stuff, yes/no."


I'm not saying they're unconnected; they're clearly meant to work in concert. But legally, they are completely separate. This is why separate judgments were issued. The Court has the power to consider severability and it specifically chose not to regard the Medicaid expansion as inseverable from the mandate. If you want to ascribe all sorts of hidden policy meaning to the opinion, and decide that the size of the case means every part of the decision is highly significant, you can't read into just the part about the mandate and not the fact that they treated the Medicaid expansion as severable. Either it's all significant or not.

Well, first, I'm addressing proponents of the idea; not you, specifically. And for another, I think it'd be fine to address to you, because my entire case is that people who believing the Constitution is a "living document" do, in fact, want to rewrite the Constitution. They don't say it that way, because it sounds bad, but there's no other reasonable way to interpret the position. Read on for more.

And how is this functionally different than saying we can rewrite it? There's not much meaningful difference between LITERALLY changing a word, and "reinterpreting" a word to mean more than was written or intended. "Living document" and "flexibly interpreted" are just less serious sound ways of saying the same thing: changing the Constitution to fit what we want to do, rather than changing our behavior so that it stays Constitutional.

People just need to come out and say this. Hell, Ginsburg has. She said the Constitution was "outdated."

The only values a strict constructionist "imposes" is the value that judges should decided legality and constitutionality, and nothing more. This actually gives them a text by which all of their decisions must be judged. To proclaim that the Constitution is a "living document" removes, or at least significantly weakens, this check. That puts the two in wildly different situations.

Also, even if we grant that they impose their own "values" apart from this, I'm not sure how significant that would be. The fact that they always fall short of this standard does not invalidate it, any more than law enforcement is invalidated because no police force is perfect. The question is, which is a failing, and which is fundamentally a subterfuge?

Obviously, you find this sort of continual rewriting to be necessary, but that leads me to several questions:

1) Do you think the Founders didn't realize that times would change? They specifically constructed the document to contain broad governing principles that would stand the test of time. They even included mechanisms to change the Constitution, and we've done that 27 times. They didn't force us to live with the same document forever, they just made sure we, as a society, had to be certain of the change before we made it. So it can't be said that they never envisioned this stuff; they'd have to be stupid not to, and they specifically included the means by which to make such changes. So to maintain your position, you have to conclude that they were wrong to require this kind of consensus. Do you?

2) Whether you think the "living document" philosophy is necessary or not, do you or do you not acknowledge that it has led to a massive increase in federal power? It seems inarguable, but I'll allow you to answer for yourself. And if so, is this or is this not one of the things the framers were specifically trying to avoid by giving the State governments plenary power, yet making the Federal government one of enumerated powers?

No, I'm not, but your claim is that it's unprecedented; it's not my job to prove a negative.

Also, by inserting the phrase "an issue of this magnitude," you kind of give yourself an escape hatch. There have only been a handful of cases of this magnitude, and all of them have been unprecedented in some sense or another.


Your entire line of argument is just as consistent with the idea that the case was important and Roberts didn't like overruling the legislative branch as it is with the idea that he liked the policy or thought it was important. It's also just as consistent with the idea that he cared about the court's reputation and thought overruling the mandate would sully it. These all make equally as much sense, if we're speculating, except that one of them (the merits of the law) was specifically contradicted in Roberts' opinion.


You didn't mention Roberts, specifically, but you said the Court in general had done all of those things above. But if you say the reaction was emotional and not meant to be taken literally, I can certainly accept that answer.

Fine examples to demonstrate that the courts are sometimes necessary to defend the Constitution. But do you want to make the claim that not being forced to buy health insurance is somehow a civil rights issue on part with racial segregation? And either way, isn't there a difference between striking down something that limits freedom, and upholding something that does?

What exactly made it an "olive branch"? He wanted something he knew Republicans were very opposed to, and then offered to work within it, sort of. I'm not sure what makes this a grand gesture of bipartisanship. And when they didn't like it (which he can't have been surprised by), he pushed it through without them.

Republicans are not a hive-mind; they change over time, just like Democrats, who used to love nation building. Also, for all the talk of it being a "Republican" idea, it was never one that was actually popularized among Republicans; it was floated as a trial balloon and never even got to the point at which it was debated or seriously considered by the part. Ramesh Ponnuru has a useful history of the idea that makes it clear that calling it a "Republican idea" is ascribing a level of support to it that it never actually had.

Also, our "own nominee" got a ton of flack from his party and had a much rockier path to the nomination than he otherwise would have specifically because he embraced the idea.

Here's over 200 pieces of health care legislation this Republican Congress has presented. Regardless, even if the Republicans hadn't presented anything, that's not an argument for ramming Obamacare through.

Ah, so you're saying President Obama gets to start the discussion with the assumption that it's the duty of the government (the Federal government, too) to make sure everyone has healthcare? Well, geez, no wonder you think Republicans had to be ignored and the legislation had to be shoved through: you're just arbitrarily granting the central point of dispute to the President.

So you also think that President Bush should have pushed his Social Security reform in 2005 through, too, right? After all, Democrats offered no alternative.