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So, Roberts Actually Flip-Flopped His Position?


Xnex
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Last week I mentioned in a post that I thought too many folks here, and everywhere really, made far too big of a deal out of people in positions of power actually changing their minds based on new information becoming available or in-depth rethinking or their original positions. The "individual mandate" section of the healthcare law was doomed to be stricken down with Roberts siding with the core conservatives + Justice Kennedy. However he seems to have come to a totally different conclusion while actually going through the process of writing the majority opinion that was going to take down the healthcare law.

The attached article is a great read that discusses some of the behind scenes wrangling that went on among the justices and the politics that seems obviously to have at least reached our Supreme Court to some degree.

http://www.cbsnews.c...ain;contentBody

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To be on topic and not butthurt about things that happened before I was born,

I am okay with someone flip flopping, so long as the reason is that they actually learned something and it truly changed their position. I am not okay with flip floppers who just do it so they can appease the masses. So if Judge Roberts actually thought it was Constitutional , then I am okay with the ruling, even though I do not agree with the law. Considering that he seems like the only one who did his job and did not follow party line or try to use the judgment for politics, I have no anger towards him.

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Nor is your gloom and doom.

Not gloom and doom, just an absolute historical fundamental change in the way this country operated during that year with several key pieces of legislation. Gloom and doom indicates predictions of failing at a future date and that's obviously not what I'm doing. 16th and 17th amendments along with the Federal Reserve Act all in the same year. HUGE difference in operations...

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To be on topic and not butthurt about things that happened before I was born,

I am okay with someone flip flopping, so long as the reason is that they actually learned something and it truly changed their position. I am not okay with flip floppers who just do it so they can appease the masses. So if Judge Roberts actually thought it was Constitutional , then I am okay with the ruling, even though I do not agree with the law. Considering that he seems like the only one who did his job and did not follow party line or try to use the judgment for politics, I have no anger towards him.

Actually Kennedy also went against the grain when it came to this case as well. He was always thought of as more of a liberal and many viewed him as the obvious "swing vote" in this case but from reading the articles it's clear that he came down forcefully on the conservative side of things.

Seeing this type of behavior from our SCOTUS Justices actually makes me feel better about America. Of all the people in the Federal government, at the highest levels of the federal government it is the Justices who I most hope will avoid any sense of party loyalty when it comes to making the important decisions for our nation. Maybe there was some kind of behind the scenes reasoning for Roberts to change his mind in hopes of giving a boost to the conservatives efforts come November, I don't know. But I am choosing to see this outcome as a positive indicator for the Supreme court. Thank God the swing vote did not come down to Scalia... he may as well ride an elephant to work every day.

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To be on topic and not butthurt about things that happened before I was born,

I am okay with someone flip flopping, so long as the reason is that they actually learned something and it truly changed their position. I am not okay with flip floppers who just do it so they can appease the masses. So if Judge Roberts actually thought it was Constitutional , then I am okay with the ruling, even though I do not agree with the law. Considering that he seems like the only one who did his job and did not follow party line or try to use the judgment for politics, I have no anger towards him.

To be on topic and not butthurt about things that happened before I was born,

I am okay with someone flip flopping, so long as the reason is that they actually learned something and it truly changed their position. I am not okay with flip floppers who just do it so they can appease the masses. So if Judge Roberts actually thought it was Constitutional , then I am okay with the ruling, even though I do not agree with the law. Considering that he seems like the only one who did his job and did not follow party line or try to use the judgment for politics, I have no anger towards him.

Coalition building on the Supreme Court is not like voting for legislation in Congress. It would not be "flip-flopping" if Roberts negotiated with both sides to move the majority opinion closer to his viewpoint, even if that meant he signed off on things he might not strongly believe. Consider this example:

The SC hears a case about abortion. 4 justices vote to overturn Roe v. Wade and allow full bans on abortion. 4 justices vote to uphold Roe v. Wade and not allow any restrictions on abortion. The last justice doesn't want to overturn Roe because it's established precedent (e.g., not a judicial activist) but still supports severe restrictions on abortions. If that justice could get the 4 liberals to agree to this particular restriction while not undermining Roe, he might be willing to ease up on language that in future cases could be use to uphold more severe restrictions. On the other hand, if the justice could get the 4 conservatives to move away from overturning Roe while keeping language that could allow states to impose severe restrictions, then he would do that.

That's not "flip flopping", it's simply negotiating and compromising to get a majority opinion closer to the justice's own views. That appears to be what Roberts did here. Remember that the 4 dissenting justices wrote an opinion that was pretty draconian--it ruled everything about the ACA unconstitutional. Roberts might not have wanted to take a route that he viewed as to activist and risk endangering the reputation of the Court. The SC is only as powerful as its reputation, after all. It cannot enforce its decisions, so it must rely on public credibility as the "teeth" behind its opinions. It's perfectly valid for a chief justice to forge coalitions that set the precedent he wants while preserving the Court's reputation.

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Actually Kennedy also went against the grain when it came to this case as well. He was always thought of as more of a liberal and many viewed him as the obvious "swing vote" in this case but from reading the articles it's clear that he came down forcefully on the conservative side of things.

Seeing this type of behavior from our SCOTUS Justices actually makes me feel better about America. Of all the people in the Federal government, at the highest levels of the federal government it is the Justices who I most hope will avoid any sense of party loyalty when it comes to making the important decisions for our nation. Maybe there was some kind of behind the scenes reasoning for Roberts to change his mind in hopes of giving a boost to the conservatives efforts come November, I don't know. But I am choosing to see this outcome as a positive indicator for the Supreme court. Thank God the swing vote did not come down to Scalia... he may as well ride an elephant to work every day.

I don't think that it's party loyalty driving many of them, but it's definitely ideological rigidity on some of their parts (both left and right). Scalia in particular is sounding more and more like a raving ideologue than a reasoned legal scholar as he gets older. There has long been a block of liberal justices whose votes are pretty predictable based on their liberal beliefs.

Keep in mind that ideological philosophy overlaps so much with judicial philosophy that it's hard to untangle them in any real part. So while I agree with you and prefer justices who are not voting based solely on their ideological leanings, I would just quibble with the phrase "party loyalty" here because I don't think that applies once they get appointed.

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I don't think that it's party loyalty driving many of them, but it's definitely ideological rigidity on some of their parts (both left and right). Scalia in particular is sounding more and more like a raving ideologue than a reasoned legal scholar as he gets older. There has long been a block of liberal justices whose votes are pretty predictable based on their liberal beliefs.

Keep in mind that ideological philosophy overlaps so much with judicial philosophy that it's hard to untangle them in any real part. So while I agree with you and prefer justices who are not voting based solely on their ideological leanings, I would just quibble with the phrase "party loyalty" here because I don't think that applies once they get appointed.

Yeah, I used the term Party loyalty more as a matter of convenience because I couldn't come up with a different, more accurate term on the fly as I typed my post. And eventhough Kennedy "flipped" the other way and judged the case in a way that I didn't want it to be judged, it gave me a bit of solace just knowing that there still appears to be enough justices who aren't as rigid and predictable as some others.

I don't know if the SCOTUS has always been viewed as "uncomfortably political" and it just wasn't as well publicized in the past or if indeed this is a newer development and indicates a move toward a Court which is populated with Justices who hold extreme values and behave in a manner along the lines of our elected officials. I know many people believe an array of our sitting Presidents have viewed the opportunity to place a justice on the Supreme Court as a major part of their legacies.

One more thing I don't understand about the Supreme Court is the designation of one of them as Chief Justice. I guess I'm trying to figure out why the position of Chief Justice isn't one that is based on time in the position which would be bestowed on the most senior justice whenever the previous chief justice decided to step down. I have no idea why Justice Roberts should be the chief justice upon walking through the door while the other justices have more time in the position (other than Sotomayor, I think).

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This has me conflicted. On the one hand, I am not a fan of Roberts ruling. However, I am a big supporter of flip floppers.

From what I can tell from the article, Roberts was the centrist of the bunch and kept shifting from one side to the other in terms of the ruling. He seems like he didn't mind the act overall but didn't like how the mandate was worded and enforced. He then tried to negotiate with the right wing of the Supreme Court but they would have none of it, since they wanted to throw out the entire act instead of simply throwing out the mandate, until he began negotiating with the left wing of the Supreme Court in terms of how the act should properly be worded at which point they tried desperately to bring him to their side of the ruling but wouldn't bend so they proceeded to throw a hissy fit.

I'm not the biggest fan of Roberts and some of his rulings but he came off as the only adult in the SCOTUS for this ruling and was actually a judge instead of going into the case with a preconceived notion with how he was going to rule.

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Here's the biggest problem (and it may actually be what Roberts is saying):

Yes, in the bill itself (you know, the one we had to pass so that we could see what was in it) the "penalty" is labeled an excise tax. So Roberts is technically correct that it is a tax.

Now, the lawyers need to file another suit claiming unconstitionality by stating that it's not a legitimate excise tax.

I'm certain that they can't legally place an excise tax on NOT purchasing an item. If that is ruled the case then we are in for it...

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http://news.yahoo.com/blogs/ticket/romney-obama-agree-health-care-individual-mandate-not-154845339.html

"Romney and Obama agree: Health care law’s individual mandate is not a tax"

The Supreme Court last week upheld President Barack Obama's health care law because Chief Justice John Roberts' opinion considered the federal mandate to buy health insurance lawful under Congress' taxing power. But neither Mitt Romney nor Obama are buying it—for two different reasons.

Romney strategist Eric Fehrnstrom confirmed Monday that Romney disagreed with Roberts' decision to consider the individual mandate a tax, despite the fact that Republican groups and members of Congress are already running ads criticizing Obama for raising taxes through the health care law.

"The governor disagreed with the ruling of the court; he agreed with the dissent that was written by Justice Scalia, that very clearly said that the mandate was not a tax," Fehrnstrom said on "Daily Rundown," the MSNBC show. "The governor believes what we put in place in Massachusetts was a penalty, and he disagrees with the court's ruling that the mandate was a tax."

Both sides have been forced to tread a fine line in the debate on what to call the individual mandate. While pushing for the law before it was passed, Obama insisted that it was a penalty, not a tax. But during oral arguments in front of the Supreme Court in March, his solicitor general was sent to argue that it was a tax. Meanwhile, Romney cannot call it a tax either because doing so would open him up to attacks of hypocrisy because he oversaw the passage of a similar mandate while governor of Massachusetts. Romney insisted at the time—and continues to do so today—that his policy in Massachusetts was not a tax.

After Fehrnstrom's interview, Romney spokeswoman Amanda Henneberg released a statement saying Romney considers the mandate "an unconstitutional penalty."

"The Supreme Court left President Obama with two choices: the federal individual mandate in Obamacare is either a constitutional tax or an unconstitutional penalty," Henneberg said. "Governor Romney thinks it is an unconstitutional penalty. What is President Obama's position: is his federal mandate unconstitutional or is it a tax?"

Of course, Romney avoiding the "T-word" won't stop many conservative nonprofits and super PACs that support his presidential bid from gladly calling the individual mandate a "tax."

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The excise tax applies to something different than the individual mandate, which was referred to as a penalty throughout the bill.

Roberts engaged in strange judicial activism by actually changing the interpretation of a bill as written by using a somewhat arbitrary checklist of what a "tax" looks like. Not to be overlooked was his argument that AIA wasn't applicable because the bill wasn't written as a tax, thus conflicting with his resulting argument about it being a tax.

A head twister by any stretch, and hardly the noble example of compromise people are trying to position it as.

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The excise tax applies to something different than the individual mandate, which was referred to as a penalty throughout the bill.

Roberts engaged in strange judicial activism by actually changing the interpretation of a bill as written by using a somewhat arbitrary checklist of what a "tax" looks like. Not to be overlooked was his argument that AIA wasn't applicable because the bill wasn't written as a tax, thus conflicting with his resulting argument about it being a tax.

A head twister by any stretch, and hardly the noble example of compromise people are trying to position it as.

I don't know, I was reading through the bill today and it seemed labeled as an excise tax but I admit to just scanning through it for key words so I could definitely be in the wrong...

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To be on topic and not butthurt about things that happened before I was born,

I am okay with someone flip flopping, so long as the reason is that they actually learned something and it truly changed their position. I am not okay with flip floppers who just do it so they can appease the masses. So if Judge Roberts actually thought it was Constitutional , then I am okay with the ruling, even though I do not agree with the law. Considering that he seems like the only one who did his job and did not follow party line or try to use the judgment for politics, I have no anger towards him.

That's basically how I feel.
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