Pepper sprayed for public safety.

[Tyrone Slothrop]

Originally Posted by Adder

So all the time you said, "it's unconstitutional" those were not substantive arguments? Just your expectation that 5 members of the court would recognize and act on their political interests?

My hypothesis, which is unrefutable: If he couldn't have upheld the ACA on the taxing basis, Justice Roberts would have ruled with the four moderates that Congress had the power to enact the ACA under the Commerce Clause.

[Hank Chinaski]

Originally Posted by Adder

Which factor wins out politically? Obama for having been proven right, or conservative anger over health care?

For history Obama won, not sure what this does to the race. Lawyers can process "it's a tax on people w/O hc" better than a lot of voters will be able to. but I don't see how the law being shot down would have helped him. Maybe the right wing will say "we need r presidents so we can put judges at the scotus that will Kill hcr AND Roe?"

[Replaced_Texan]

Originally Posted by Greedy,Greedy,Greedy

I'm betting someone pretty senior goes at CNN, and that everybody at Fox just cheers for those marvelous few minutes when they thought the US remained a free country.

If you read the first sentence of the summary, it says "2. Chief Justice Roberts concluded in Part III-A that the individual mandate is not a valid exercise of Congress's power under the Commerce Clause and the Necessary and Proper Clause." Unfortunately, they didn't keep reading where it says "3. Chief Justice Roberts concluded in Part III-B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable." Obviously the people over at CNN didn't keep reading.

[Tyrone Slothrop]

No wonder Scalia was so pissed on Monday -- it looks like he had his five votes to overturn the whole ACA, and then lost Roberts at the last minute.

[Greedy,Greedy,Greedy]

Originally Posted by Tyrone Slothrop

No wonder Scalia was so pissed on Monday -- it looks like he had his five votes to overturn the whole ACA, and then lost Roberts at the last minute.

I thought it was quite common to have different factions put together draft opinions as part of convincing folks in the middle. It doesn't mean they have the votes. Then they redraft when they know who wins.

I don't think this means Scalia, Alito and Thomas had the votes, only that they thought it was possible they would have them. Roberts - and possibly others - may have been hold-outs for some time. Roberts wrote his own long and detailed opinion, with some parts being adopted as the opinion of the court and some not - that doesn't happen overnight. Or even in a week.

I don't think the journalists speculating here have much understanding of the process. Consider the sloppy drafting and references just that - sloppy work, possibly by demoralized blowhards who just don't care that much.

FYI - another theory is now floating, which is that Roberts wrote the bulk of both opinions, and the wingers were just sloppy about how they adopted Roberts' alternative decision to a dissent: See NRO Analysis. So under this reading, they're also just really lazy because they didn't bother to write their own opinion. But, it explains the lack of a chief author to the dissent. This also explains why the more crackpot elements of the dissent are in the tax discussion, not the Commerce Clause discussion. Thomas has to write separately on behalf of 19th century views of the commerce clause, something that shouldn't have been the case if Scalia was drafting.

[Adder]

Originally Posted by Tyrone Slothrop

No wonder Scalia was so pissed on Monday -- it looks like he had his five votes to overturn the whole ACA, and then lost Roberts at the last minute.

Well, to the extent that the Scalia/Thomas/Alito/Kennedy opinion agrees with the Roberts opinion on the commerce and necessary and proper clauses, which it appeared to me it did although I lost steam and stopped reading, then Ginsburg is in dissent as to those parts.

Btw, it's interesting that people seem to assume that Scalia wrote the dissent, which is signed by the four of them.

[Adder]

Originally Posted by Greedy,Greedy,Greedy

I thought it was quite common to have different factions put together draft opinions as part of convincing folks in the middle. It doesn't mean they have the votes. Then they redraft when they know who wins.

I don't think this means Scalia, Alito and Thomas had the votes, only that they thought it was possible they would have them. Roberts - and possibly others - may have been hold-outs for some time. Roberts wrote his own long and detailed opinion, with some parts being adopted as the opinion of the court and some not - that doesn't happen overnight. Or even in a week.

I don't think the journalists speculating here have much understanding of the process. Consider the sloppy drafting and references just that - sloppy work, possibly by demoralized blowhards who just don't care that much.

FYI - another theory is now floating, which is that Roberts wrote the bulk of both opinions, and the wingers were just sloppy about how they adopted Roberts' alternative decision to a dissent: See NRO Analysis. So under this reading, they're also just really lazy because they didn't bother to write their own opinion. But, it explains the lack of a chief author to the dissent. This also explains why the more crackpot elements of the dissent are in the tax discussion, not the Commerce Clause discussion. Thomas has to write separately on behalf of 19th century views of the commerce clause, something that shouldn't have been the case if Scalia was drafting.

I don't think it's sloppy. I think it's the four trying to cast the commerce clause and necessary and proper analysis as a majority opinion, even though they didn't all join one opinion on that point.

[LessinSF]

Originally Posted by Greedy,Greedy,Greedy

I thought it was quite common to have different factions put together draft opinions as part of convincing folks in the middle. It doesn't mean they have the votes. Then they redraft when they know who wins.

I don't think this means Scalia, Alito and Thomas had the votes, only that they thought it was possible they would have them. Roberts - and possibly others - may have been hold-outs for some time. Roberts wrote his own long and detailed opinion, with some parts being adopted as the opinion of the court and some not - that doesn't happen overnight. Or even in a week.

I don't think the journalists speculating here have much understanding of the process. Consider the sloppy drafting and references just that - sloppy work, possibly by demoralized blowhards who just don't care that much.

FYI - another theory is now floating, which is that Roberts wrote the bulk of both opinions, and the wingers were just sloppy about how they adopted Roberts' alternative decision to a dissent: See NRO Analysis. So under this reading, they're also just really lazy because they didn't bother to write their own opinion. But, it explains the lack of a chief author to the dissent. This also explains why the more crackpot elements of the dissent are in the tax discussion, not the Commerce Clause discussion. Thomas has to write separately on behalf of 19th century views of the commerce clause, something that shouldn't have been the case if Scalia was drafting.

Or it simply came down to the last minute and the printing office had to go with what they got.

LessinHannover

[Tyrone Slothrop]

Originally Posted by Greedy,Greedy,Greedy

I thought it was quite common to have different factions put together draft opinions as part of convincing folks in the middle. It doesn't mean they have the votes. Then they redraft when they know who wins.

I think that is quite common, but it's not common for an opinion to refer to a concurrence as a dissent. Less may be right when he says they just got too close to the deadline.

[Adder]

Originally Posted by Hank Chinaski

I believe the bases for my hypothesis were the decisions that found it unconstituitional.

Perhaps the total lack of traction the tax argument found in the lower courts may teach you something about the strength of that as a basis (as, of course, should the fact that the majority of lower courts upheld it, if memory serves).

[Greedy,Greedy,Greedy]

Originally Posted by Adder

Perhaps the total lack of traction the tax argument found in the lower courts may teach you something about the strength of that as a basis (as, of course, should the fact that the majority of lower courts upheld it, if memory serves).

Well, based on prior precedent, I think the lower courts were right on commerce, and who really wants to decide anything as a tax case. Ginzy makes the originalist argument quite well, too.

These are the supremes. If it wasn't ready, they could have kicked the can and released it next week. Releasing obviously sloppy work is not good. I can only image what dtb will say about it.

[LessinSF]

Originally Posted by Adder

Perhaps the total lack of traction the tax argument found in the lower courts may teach you something about the strength of that as a basis (as, of course, should the fact that the majority of lower courts upheld it, if memory serves).

I think it was pretty clearly a compromise. Roberts, as true conservative minimalist, didn't want to interfere with Congress decision if there was a basis to uphold it but wasn't going to judicially kill federalism. So the libs had to eat the tax argument to win it. I'm surprised there aren't more Roberts ex-clerks atthebig appellate firms who didn't know this, though, and craft their amici arguments accordingly. But I guess you get what you pay for with a $250,000 bonus.

LessinHannover

[Tyrone Slothrop]

Originally Posted by LessinSF

I think it was pretty clearly a compromise. Roberts, as true conservative minimalist, didn't want to interfere with Congress decision if there was a basis to uphold it but wasn't going to judicially kill federalism. So the libs had to eat the tax argument to win it. I'm surprised there aren't more Roberts ex-clerks atthebig appellate firms who didn't know this, though, and craft their amici arguments accordingly. But I guess you get what you pay for with a $250,000 bonus.

On what Roberts might have been thinking, this is quite good.

I'm glad that we will no longer have to think about Social Security privatization, now that five Supreme Court justices have said it would be unconstitutional to force people to engage in commerce.

[Adder]

Originally Posted by Greedy,Greedy,Greedy

These are the supremes. If it wasn't ready, they could have kicked the can and released it next week. Releasing obviously sloppy work is not good. I can only image what dtb will say about it.

I'll keep saying it, but I think it's intentional, not sloppy.

[Adder]

Originally Posted by LessinSF

I think it was pretty clearly a compromise. Roberts, as true conservative minimalist, didn't want to interfere with Congress decision if there was a basis to uphold it but wasn't going to judicially kill federalism. So the libs had to eat the tax argument to win it. I'm surprised there aren't more Roberts ex-clerks atthebig appellate firms who didn't know this, though, and craft their amici arguments accordingly. But I guess you get what you pay for with a $250,000 bonus.

LessinHannover

Honestly, thinking back on it, it's funny how quickly the discourse moved away from the tax question. The argument for why it isn't a tax seemed to be no more than, "they didn't call it a tax" with perhaps a bit of "it has to be called a tax for the political check to be meaningful, so it's not fair to look at what it really is."

Roberts just said if it looks like a duck and quacks like a duck...