• New Book: John Roberts Let Politics Sway His Obamacare Ruling - Maybe '

    From Ubiquitous@21:1/5 to All on Sun Feb 10 11:32:58 2019
    XPost: alt.tv.pol-incorrect, alt.politics.usa, alt.fan.rush-limbaugh
    XPost: courts.usa.federal.supreme

    In the end, applesauce won over baseball. Fourteen years ago, during
    Senate hearings regarding his nomination as chief justice of the United
    States, John Roberts used a baseball metaphor to explain his view of
    judges’ modest role:

    Judges and justices are servants of the law, not the other
    way around. Judges are like umpires. Umpires don’t make the
    rules; they apply them. The role of an umpire and a judge is
    critical. They make sure everybody plays by the rules. But
    it is a limited role. Nobody ever went to a ball game to see
    the umpire…I will remember that it’s my job to call balls
    and strikes, and not to pitch or bat.

    On two major cases related to President Obama’s signature health care
    law, however, Roberts violated his 2005 pledge, wriggling himself into lexicographical contortions to uphold the measure passed by Congress.
    As his then-colleague Justice Antonin Scalia noted in the second
    ruling—which posited that the phrase “Exchange established by the
    state” applied to exchanges not established by states—upholding
    Obamacare caused Roberts to embrace “pure applesauce.”

    Political Flip-Flop

    A forthcoming book by reporter Joan Biskupic, who has covered the
    Supreme Court for decades, goes into detail on Roberts’ first defense
    of the health-care law—his ruling in the 2012 case of Nation Federation
    of Independent Business v. Sebelius. In a book review for The Atlantic,
    Michael O’Donnell includes the following precis of Biskupic’s

    She writes that he initially voted with the four other
    conservatives to strike down the ACA, on the grounds that
    it went beyond Congress’s power to regulate interstate
    commerce. Likewise, he initially voted to uphold the ACA’s
    expansion of Medicaid. But Roberts, who kept the opinion
    for himself to write, soon developed second thoughts.

    Biskupic, who interviewed many of the justices for this book,
    including her subject, writes that Roberts said he felt ‘torn
    between his heart and his head.’ He harbored strong views on
    the limitations of congressional power, but hesitated to
    interject the Court into the ongoing health-insurance crisis.
    After trying unsuccessfully to find a middle way with Kennedy,
    who was ‘unusually firm’ and even ‘put off’ by the courtship,
    Roberts turned to the Court’s two moderate liberals, Stephen
    Breyer and Elena Kagan. The threesome negotiated a compromise
    decision that upheld the ACA’s individual mandate under
    Congress’s taxing power, while striking down the Medicaid

    On the day of the ruling in June 2012, Chris Cillizza, then writing for
    The Washington Post, claimed that Roberts’ opinion “made good on his
    pledge to referee the game, not play it.” But the story Biskupic tells,
    which confirms prior reporting by Jan Crawford published shortly after
    the ruling, contradicts Cillizza’s view entirely. Roberts’ entire
    approach to the case consisted of playing games—and highly political
    ones at that.

    The tenor of the passage reinforces how Roberts abandoned his stated
    principles in NFIB. Over and above talk of “the ongoing health
    insurance crisis” (perhaps a rhetorical flourish inserted by a liberal
    Atlantic writer) Roberts had no business feeling “torn between his
    heart and his head,” let alone stating as much to a reporter. Judges
    can feel both empathy and sympathy for parties in the courtroom and at
    the implications of their rulings. But facts remain facts, the law
    remains the law. Lady Justice remains blind for a reason.

    An umpire—or a good umpire, at least—should make calls without fear or
    favor. If that means calling a third strike against the star slugger
    for the last out of the World Series, so be it. By his own admission,
    Roberts let factors outside the law determine his vote in the case. He abandoned his key test at a time when he should have followed it most

    Roberts’ Judicial Arrogance

    Last spring, when analyzing the most recent lawsuit seeking to strike
    down all of Obamacare, I wrote that “in this case, striking down [all
    of] the law through legal fiat would represent judicial activism at its worst—asking unelected judges to do what elected Members of Congress
    took great pains to avoid.”

    I took that position not because I agree with Obamacare, but because
    Congress in 2017 decided to set the mandate penalty to zero while
    maintaining the rest of the law. Of course, Congress had taken no such
    action clarifying its intent on the law at the time of the ruling in
    NFIB v. Sebelius.

    If the current lawsuit represents judicial activism, asking judges to
    take an action that Congress explicitly declined to embrace, then
    Roberts’ 2012 decision to uphold the individual mandate represents an
    act of judicial cowardice, running for cover and hiding rather than
    taking the decision that the law requires. For that reason alone,
    conservatives should refer to the law as “Robertscare”—for the justice
    who went out of his way to save it—rather than Obamacare. It shall
    stand as his epitaph.

    Q: Why is ObamaCare like a turd?
    A: You have to pass it to see what's in it.

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