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Today at the Supreme Court

[ 10 ] June 28, 2012 |

I’ll have a piece up shortly at Salon about why it’s basically nuts that John Roberts gets to decide what sort of health care system America has. It quotes a good point made by Richard Posner earlier this week in the context of the life without parole for teenagers case:

I don’t object to a loose construction of the Constitution; there isn’t any sensible alternative, given how old and out of touch the document is, how unrecoverable the actual thinking of its authors and ratifiers, and how vaguely worded so much of it is.

Posner’s point is that, under the circumstances, “constitutional interpretation” must give justices — or, in the case of 5-4 decisions, one justice — the power to do pretty much whatever they want in regard to the sorts of issues that end up before the Supreme Court.

Whether this is a desirable state of affairs is another question entirely.

Here’s the Salon piece.

Comments (10)

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  1. ploeg says:

    This state of affairs has existed in the executive branch for about forever (though it’s necessarily in regard to an entirely different set of issues, and the influence of a particular President is necessarily diluted by the influence of individual secretaries, the permanent bureaucracy, etc.).

    It seems that the main issue here is a lack of accountability for hackish behavior, not merely the fact that one person has so much influence.

  2. A Volokh Conspiracy post points out that the dissent reads a lot like a majority opinion in a lot of ways (eg it refers to RBG’s writing as her “dissent”), and thinks it legitimates earlier rumors that Roberts was set to burn everything down and was scared off by Obama’s threats to de-legitimate the court and the general fooferfall surrounding everything.

    It is kinda silly that trillions of dollars and the health of millions of people is dependent on the risk tolerance of one dude.

    I also want to hear Sunstein’s reaction to the decision, since it seems like his kind of minimalism.

    • And a balloon juice comment comes up with more:

      “[Excerpt from dissent] Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration than the lick-anda-promise accorded by the Government and its supporters. [/excerpt]

      The dissent is saying that construing the mandate as a tax “would force us” to decide whether the Direct Tax Clause applies and then says that “we have no need to address the point”. But of course they must address the point – since the majority of the court has, indeed, construed the mandate as a tax. In fact, Roberts addresses the point and concludes that the mandate does not offend the Direct Tax Clause.

      To me, it’s clear what happened here. This opinion started out as a majority opinion; Roberts defected; then law clerks were asked to edit the opinion to make it a dissent. They just forgot to edit this paragraph.”

      • Paul Campos says:

        That’s not what happened.

        The dissent refers to Ginsburg’s concurrence as a “dissent” fifteen separate times. The dissenters left this language in there intentionally, to let everybody know about Roberts’ stab in the back.

        • Sorry, I’m totally not following. Can you explain this again?

          • Paul Campos says:

            The dissent was the majority opinion when it was sent to the printer. Roberts then changed his vote. The dissenters refused to change the parts of the text referring to Ginsburg’s “dissent” as a way of ratting Roberts out. (This could not possibly be unintentional).

            • Sherm says:

              Or the dissenters are simply pointing out that they are in the majority on the commerce clause issue while Ginberg is in the minority and is thus dissenting on that issue. I suspect that you are right, but it’ll be interesting to find out what really happened and how it all when down.

        • Whoa. I didn’t realize they were that passive-aggressive with the language.

          But there are a couple degrees of catty assholery between leaving the word dissent in there, and letting the structure of the opinion be affected by being upset you’re not in the majority.

  3. Dave says:

    Well, if you guys could figure out a) how to get a substantial majority of the electorate to vote; b) how to ensure that electorate is actually comprised of all eligible citizens; c) how to count their votes honestly and openly; and d) how to apportion those votes between constituencies in a non-partisan way to produce results consonant with the composition of the general population; then you might not need to keep sending everything up the line to 9 unelected folks, would you? But hey, if you could do that, you could do pretty much anything.

  4. Joe says:

    the power to do pretty much whatever they want

    actually no … there is an Overton Window here.

    I guess we can toss judicial review but since 1789, the people want it. They vote for people who pick judges who apply it. Maybe the rule should be to require a supermajority for federal statutes in certain cases. 6-3 maybe.

    Of course, that will hurt both sides in certain cases. And, there is no big desire from the people to force the issue.

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