June 30th, 2012

More reflections on SCOTUS and Obamacare and the future

After all the brouhaha, I’ve come to the conclusion that, although I would have liked to have seen Obamacare overruled Thursday, fussing about the details of Commerce Clause vs. tax power isn’t really the point, although it’s legally interesting and Justice Roberts’s convoluted reasoning for doing what he did is rather mind-boggling and almost frightening in its pretzel-like gymnastics.

So, what is the point? The 2012 election, for the simple reason that whoever becomes president will determine the future of the Court for a long long time to come. And the Court has a lot of clout.

If Obama is elected, and gets to appoint his picks, you better believe that both the Commerce Clause and the taxing power and everything else that increases the reach of government will expand. Under Obama, any liberal justice who might be old and/or sick will feel free to retire and have some younger version of him/herself appointed. The conservative justices will just have to hang on and take really good care of themselves, including “ranting old man” Scalia, who’s 76 and not really that old in SCOTUS-years (which are sort of like the opposite of dog years).

If Romney is elected, the same would be true but with the parties reversed.

And yes, I’m familiar with frequent assertions by conservatives that Romney is so unconservative that he’ll appoint squishes who will turn, like Roberts. They often point to Romney’s record of judicial choices in Massachusetts, but they forget the fact that Romney was working in an ultra-liberal state. Things will almost certainly be different when he is president—although I also understand that unless the most staunchly conservative judges are appointed, there’s always the possibility of a Souter-like (or now we can add Roberts-like) “change” experience.

[NOTE: Those interested in learning more about Romney's actual record in picking judges in Massachusetts---as opposed to hearing quick soundbites on the matter---would do well to read this article.]

30 Responses to “More reflections on SCOTUS and Obamacare and the future”

  1. George Pal Says:

    Are possible judicial appointments based on presidential candidates and/or their respective parties really worth reflection? Isn’t the future demonstrated by the past? When has a Democratic Supreme Court appointee ever gone off the reservation… or rogue? I would note George Bush fils (I know he’s not running but he serves as typical) appointed Roberts and immediately after appointed Harriet Meiers to fill Justice O’Conner’s seat. Certainly that’s no brief against Romney and the future but it seems almost inevitable that Republican president’s will either nominate hacks when of the disposition of rewarding loyalty, or centrists who will not frighten the Left into ‘Borking’ their candidate. I would think Romney an unexpected success if he chose to fight the hard fights and would have a new found respect for the Republicans if they fought anywhere near as ferociously and determinedly as the Democratic Liberal/Left but I’ve not seen anything to make me believe this time is different.
    There’s nothing to go on but hope and change.

    Yuck… bad taste in my mouth.

  2. neo-neocon Says:

    George Pal: when you write “When has a Democratic Supreme Court appointee ever gone off the reservation… or rogue?”, that is exactly my point. If Obama gets to appoint new justices, they will reliably vote for the most liberal options. You can take that as almost a given.

    Conservative (or Republican-appointed, which is not the same thing necessarily) justices are less reliably conservative. But some of them are quite reliably conservative (Scalia and Thomas, to name two). The point is that, although electing a Republican president is no guarantee of the appointment of reliably conservative justices, it is the only way conservatives or even moderates will ever be nominated for the post. Meanwhile, electing a Democrat president is a very reliable way to insure the most reliably liberal skew of the Court possible.

  3. George Pal Says:


    The likes of a Bork ever being SC Justice are almost nil. Another Scalia would probably fail the advise and consent procedure and Thomas most certainly would. I understand the practical limitations and the need to play the hand dealt yet I see a systemic weakness in Republicans/Conservatives that makes it almost assured that there will never be a Conservative Justice on the SC again, absent a reliable and courageous majority in the Senate and a conservative in the WH.

  4. neo-neocon Says:

    George Pal: well, I can imagine your last two events occurring some day in the not-too-distant future: a strongly Republican Senate (they wouldn’t have to be that courageous if they were a large enough majority) and a conservative in the WH.

  5. golo Says:

    If Obama loses, I can see:
    * Ginsburg and maybe 1 other Justice resigning just fast enough for Obama to pull a “Midnight Judges” trick.
    * Obama appointing as many of his cronys as he can in order to foil the new “evil” ReThuglican administration
    *a host of blanket pardons to Holder and anyone and everyone else.

  6. holmes in cliche Says:

    Just win, baby! This one might be for all the marbles.

  7. baklava Says:

    I can’t see Obama winning. We just gained 5 million free loader voters who don’t want to pay the tax or pay for insurance.

    Because remember … 75% of the people who don’t have health insurance could actually afford some form of health insurance but choose their HDTV instead.

    Personal responsibility voters and these new free loaders will push Romney over the top.

    Is that strange or what.

  8. baklava Says:


  9. baklava Says:


    What we’re talking about is a penalty for the few people who will refuse to buy health insurance – even though they can afford it – and who expect the rest of us to pick up the tab for their care.

  10. baklava Says:

    Individual mandate used to be a conservative principle recommended by conservative organizations.

    Secretly….and via this blog it is the only part of the aca monstrosity that I like.

  11. R Daneel Says:

    Now Leviathan has the power to compel your obedience in purchasing whatever they deem necessary as they can tax you for the act of NOT doing something. The variations here are endless.

    The Republic died in ’08 and was buried by Roberts in ’12.

  12. baklava Says:

    Food is a necessity. People buy it.

    Why do people believe that health care should be free. You need to buy it.

    I would never expect that all that brick and mortar and experienced nurses and educated doctors and instruments of care are provided for free.

    The difference between food and health care is 2 things:
    1) The need for food is constant and predictable.
    2) Insurance for health is a necessity because health care needs are not constant and predictable. No need for food insurance. The all of a sudden need for $2,000 of sushi one day won’t happen. You might want that but not nee out.

    Free loaders in life want that care for free.

    I want them to pay.

  13. Don Carlos Says:

    I wish I could be as sanguine as Neo when she writes.”fussing about the details of Commerce Clause vs. tax power isn’t really the point, although it’s legally interesting….”

    This SCOTUS ruling reminds me of the Dred Scott ruling, which took the Civil War and several Constitutional amendments to undo. In refreshing my memory, I find this as part of the Wiki article:

    “In 1852, the Missouri Supreme Court struck down the lower court ruling (declaring Dred Scott free), saying, “Times now are not as they were when the previous decisions on this subject were made.” They ruled that the precedent of “once free always free” was no longer the case, overturning 28 years of legal precedent.”

    Times are not as they were, and once free always free is no longer the case apply precisely to the Roberts ruling. The taxation cat has been let out of the bag. If one can be taxed for inactivity, one can be taxed for anything under this logic. One can be taxed for not cutting one’s hair to a prescribed maximum length.

    Positive activity is taxed, and now negative activity is taxable: Everything is potentially taxable. And as Leviathan proceeds into maxi-deficit land, there will be more and more taxes.

    I am shocked and scared for my kids and grandkids. The American Republic will inexorably, over time, be lost to them and to the world forever.

    When I wrote here in 2008 that Obama=Chavez, I was sadly not exaggerating. But it took Roberts to get him there. Barack and his clan are now secure in their wielding of “Constitutional” power, and wield it they will.

  14. Don Carlos Says:

    I failed to write in the preceding that the election of Romney cannot undo this Ruling and its potential applications over time. Nothing in our lifetimes can, not even a violent uprising against the Statists (because that will not succeed).

  15. J.J. formerly Jimmy J. Says:

    Don Carlos, I am not as despairing as you. Congress has always had the power to tax to pay for the activities of government. That taxing power has increased from excise taxes/duties on imports and certain types of goods. (Alcohol, tobacco, tea, etc.) This has proceeded to the income tax, the property tax, the sales tax, etc. New ideas for raising government revenue through taxes have been accepted down through the years and they have been constitutional. Mostly these taxes have been accepted by the citizens because, when first instituted, they were exceedingly low or they applied only to a small portion of the population. Once established they have managed to grow until the citizens begin to pushback. The main reason for the existence of the Taxed Enough Already (TEA) Party is to push back against too much taxation.

    The Feds have been treading on shaky ground with their profligate spending and their desire to raise taxes to pay for it. This new taxing scheme, which taxes people for NOT doing what the Feds want them to do, is a break with the old way of imposing new taxes because it is something that reasonable people can see is a way for government to coerce citizens to do their bidding. Something new and different from the taxes now in common use. Something that the citizenry will have to decide if we think is good policy. If we can have an open national debate about this issue, I believe the citizens are finally going to stand up ala the TEA Party and say, “No more!” If not, then I agree that the way forward looks grim. Let us all apply ourselves to getting people elected who are also opposed to this new form of taxation.

    I also believe that Obamacare can be disabled quite easily by Romney. By granting unlimited waivers (Obama has already done this for certain favored groups) from its provisions to any and all who apply he can render it basically inoperative.

  16. Curtis Says:

    It’s not that bad, DC.

    AM cites Unites States v. Butler which clarifies what a tax is a what a tax is not.

    First, a tax must pass Congress and Congress won’t pass taxes. That was the deception behind “mandate and penalty.” A tax would have been even more unpopular, but a penalty on those who should pay anyway . . . well . . . that sells better.

    Second, the first time Congress tries to pass one of these hyrbid taxes, the Supreme Court will (may) impose the United States v. Butler interpretation of the Constitution, which is the right interpretation.

  17. Don Carlos Says:

    Congress may not pass taxes as Congress is presently populated, but that will not endure. It is the SCOTUS principle that is the issue here: the broadening of the taxation power. Don’t kid yourself that this power will not be used. Cast your mind back to the golden days of 1913, when the Income Tax Amendment was passed to ding only the robber barons and a few other fat cats; now fast forward to today on that.

    The American Left comes to power in surges, about every 30 years or so. The harm done in a few years is never, repeat never, undone. SCOTUS is now the great enabler, and Congress can do nothing constitutionally to undo the Roberts decision. It is there for the next 2009, the next sea of statists streaming into Wasahington.

  18. harry the extremist Says:

    Ruprt Murdoc says Romney unlikely to win.

    If so, I fear we’re sunk as a nation.

  19. neo-neocon Says:

    Don Carlos: I believe you misunderstood my meaning. If you put this post together with this one, I think it might have been clearer that when I wrote “fussing about the details of Commerce Clause vs. tax power isn’t really the point” my point was that the power of the federal government could have been expanded through either the Commerce Clause or the tax power (or even both, I suppose). Both would be bad, although both are bad in slightly different ways.

    So I am not being sanguine. I was trying to get at the fact that people who say “well, Roberts at least preserved the Commerce Clause from being expanded” are the ones being too sanguine.

  20. baklava Says:

    Here is what France is doing.

    Now eat your broccoli America! :-)

  21. baklava Says:

    75% of obamacare costs fall on those making $120k or less according to wall street journal

  22. Don Carlos Says:

    Neo: I quite agree with your yesterday post, and I accept your counter that it is the placid other that is being sanguine, and stand corrected.
    I trust I have made my own thoughts on the Ruling entirely clear.

    As an oncologist I have gotten used to anticipating the future clinical course of many malignant diagnoses. When a 50y.o. man has a
    first seizure and MRI is consistent with a parietal glioblastoma (thus incompletely resectable) I know he will be dead in a year despite all we can do.
    Sometimes in my advanced years I have the same sense of anticipating horrible socio-political develoments.

  23. baklava Says:


    As does this writer don Carlos

  24. SteveH Says:

    “”Why do people believe that health care should be free. You need to buy it”"

    The issue is the gross deformity in medical cost due to government intervention. I mean, if you break your arm and it cost as much to repair as you make in a year, something is terribly wrong.

    But who am i to be repulsed by such a system? Just pay whatever they demand and prop the whole mess up so my grandkids can enjoy it i guess.

  25. Don Carlos Says:

    Yes indeed, the WSJ editorial board gets it.
    We are in the toaster, and we are done for.

  26. Curtis Says:

    Well, let’s butter and jam ourselves up for our new overlords. We don’t want to be unnecessarily distasteful.

  27. baklava Says:

    I agree Steve. The past costs are long replaced due to govt, lawyers, insurance requirements, and technology.

    We can’t rewind bit we can sure try to eliminate some costs.

    I believe we’ve gained thatsector of irresponsible voters who don’t want to pay the tax or the insurance.

  28. Curtis Says:

    The question is not whether we are toast but if there shall arrive a point at which we must fight. Romney (and Roberts) represents a hope that the good sense of America will prevail and those who mean to fundamentally transform her will be defeated through the cultural and political process. Thus, Romney appeals to our patience; and to those in between he wants to look like the better rational choice. To the occupiers and the rest of the illiberals he offers the rare taken chance to change.

    Roberts (now that it has come to light that he actually changed his vote) did something of the same thing: he believes there is enough goodness left in the illiberals that their opinion is worth something. And why would he think different as he has spent his whole life working with “them.”

    But “we” know “them” and don’t trust them. I believe there are both sides in Romney and that his “appeasement” is somewhat true but so is his fight. He, like Roberts, has worked with “them” as well, but I do not think we are looking at similar responses.

    So Obama gets a second term. He will reap what is surely coming. We must pay the price for laziness. And that is the sin, the wrong thinking and action we did as a nation. We let government become our savior. Let government promise prosperity, freedom, luxury, ease . . . healthcare.

    So we are toast in that the bread in the toaster got burned and there’s no unburning it. But there’s still bread in the bag waiting for tomorrow’s breakfast.

  29. Curtis Says:

    I have to be honest with the facts (if this is indeed a factual finding):


    Rather saying this particular bread in the bag isn’t going to toast so well. There is some decrease in the number of guppies per generation, just not as much as one would hope.

    I find any look towards government for anything other than national protection (military) so alien and reprehensible that I cannot understand why anyone would make themselves thralls. And there I go making me into everyone else. Which makes me the world’s worst prognosticator.

  30. DNW Says:


    In the context of my earlier laudatory comments directed at your prescience: I now see that my assumption that Wickard V Filburn may have played a role in the reasoning was not well founded. http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-health-care-law/?pageNum=3

    Nonetheless, your April comments stand as a valuable reminder as to just how far and for how long historically speaking, we have traveled down the path toward a kind of at least presumptive statism. Most of us just never noticed it while it directly affected the only the few, or the many infrequently.

    We have now, with this barely closeted socialist in the WH, embarked on a new era, when they have satisfied themselves that with the collectivist principles all having been finagled into in place over seventy or more years, the time for ever greater and more intensive and inescapable implementation is at hand.

    As a side note, what I find interesting is a change in justificatory language used by collectivists over the years.

    In the old days, at least among the mainstream political class of liberals (if not the admitted Marxists in academia and activists on the political fringe) , there seemed to be at least a cursory nod toward the libertarian limiting principles of our founding, albeit sandwiched between the slabs of supposed necessity and balanced interests.

    There seems to be almost none of that anymore. Just the announced will of the progressive to have based on your provision; justified on the on the power of a voting plurality.

    I wonder how you reason or negotiate with an appetite that wills what it wills, because it wills to dominate unconditionally and without limit.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.


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