Tuesday, July 03, 2012

Chief Justice Roberts judgment against Article 3, Section 1 of the Constitution

I spent the weekend reading through the SCOTUS decision on ObamaoCare. I've had better weekends.
It'll take me a while to whittle my notes down into something less that the 193 pages of decisions & dissents, but for now, maybe just a couple general points. I came to the SCOTUS decision hoping against hope to see the grand plan or silver lining in this decision, which so many others have been talking about. I didn't find it. I did see some particulars that look like silver, but on touching them, prodding them, they melt and slip away, less silver than Quick-Silver, Mercury, which, when I last checked, Mercury was still poisonous.

For those who'd like to take this lemon of a decision, and make some unsweetened lemonade out of it, Mytheos Holt's article on The Blaze, "Five Reasons Why The Obamacare Decision Might Not Be As Bad As You Think" is probably your best bet. And, yes, there are some things which will may be simpler politically now that it's been declared a Tax, it can be fought as a tax, but seeing that as a positive is a bit like being thankful that you won't have to shop for your hard to find oversize shoes, now that they've been conveniently amputated. True, shoe shopping would be greatly simplified, but... probably not the ideal deal you were looking for.

And that describes the position of this decision well, I think, something that was done to resolve or manage issues of the moment, something that the Chief Justice did 'pragmatically' because he thought 'it works' to solve an immediate problem of his own, without having to bother with any of those pesky first principles. But as the Kansas song goes, it solves his problem "Only for a moment, then the moment's gone", and IMHO, we really need SCOTUS decisions that are more durable than dust in the wind.

BTW, one of the more interesting reactions to the decision, was when the MSM realized that Roberts had changed his mind; Why he changed his mind wasn't the shocker they had to deal with, but THAT Justice Roberts 'changed his mind', that was mind blowing for some in the media, One report investigated the phenomenon and said "Reportedly a Justice might change their mind once a term" (sorry, lost the link), and the New York Times called in a Harvard Law Professor to assure folks that,
"It is not particularly unusual for justices to change their minds while writing and exchanging drafts. Laurence H. Tribe of Harvard Law School said that “the more it happens, the more it gives you confidence that there was a serious exchange of ideas."
It is apparently a shocking revelation to those in the news media, that on deeper consideration of an issue, a person can, actually, change their mind on finding that what at first seemed obvious was less true than might have first appeared (sort of like Welfare' seems kind on the surface.. but... never mind, that's beyond questioning for them). This is much less revealing about Roberts, than a surprising self revelation of the media - leftists don't actually approach ideas in order to discover what is true and best (believing in neither 'True' or 'best'), instead they have positions and use 'Reason Seen More as Weapon Than Path to Truth', in this view, ideas and reasoning are simply tools with which they try and manipulate and contort data (they can't really be called 'facts' once they are shorn of their context) to match those positions. They don't change their minds, they simply restate their positions with rationalizations that better fit their purposes. But I digress. If Roberts changed his mind, that shouldn't be an issue, WHY he changed his mind, most definitely should.

Did he change his mind from the positions supported by Scalia, Alito, Kennedy & Thomas because he felt he discovered a more meaningful truth about the ObamaoCare Act?

Hardly, his decision doesn't just flip=flop, it contorts, gyrates and spasms mid way through at contrived pivot points, in order to state a position that no normal thought process could possibly reach except as a means of rationalizing a position - he simply cannot, based upon his own words, be thought to have arrived at his conclusion as an honest process of reasoning towards what was a deeper, truer, understanding of how to apply the law under the constitution..

So why did he do this? The odds on favorites on the political mind reading circuit is that he was concerned about the 'legacy' of his court,
Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.

There were countless news articles in May warning of damage to the court - and to Roberts' reputation - if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.
, and if that is so, I hate to tell the chief, but his dishonest decision is what is going to be his court's legacy. If he did it in order to protect the court from public opinion and political turmoil, then his pragmatic "True=what works for the moment" solution is one that spits directly in the face of the constitution he has sworn to uphold, protect and apply. Think on that for a moment... the fullness of Justice available to us all, all of our Rights, our 'life, liberty and the pursuit of happiness', all are deeply affected by, and in many ways dependent upon our Constitution - and Chief Justice Roberts put the popularity and 'respect for the institution of the court' above that.

This isn't just crude politicking or a bad decision concerning the abominable ObamaCare law, this action directly opposes and dissents against the Constitution itself. How so? The Constitution provides Supreme Court Justices with lifetime appointments 'during good behavior', "Article 3, Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."
The very point of awarding lifetime appointments, was to place them outside of, and above, the turmoil of popular opinion and concern for position, property and livelihood. Supreme Court Justices are given lifetime appointments in order to insulate them from the all too common concerns that can cause men to feel the need to strive after or flatter popular opinion, of either the public or government officials. This was how the Constitution was written and sold, as you can see by Hamilton's words in Federalist, no. 79
"This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the states, in regard to their own judges."
The reason why the Chief is Chief Justice for life, is precisely because that was seen as the best way to ensure that the Supreme Court Of The United States would rise safely and securely above the turbulence of public opinion and political pressure - and yet here, today, in direct opposition to the very purpose of the office he holds as well as that of his fellow Justices, Chief Justice John Roberts has made a decision on the constitutionality of a law affecting every single American, and how the Constitution may be applied for decades to come... based upon the popularity of 'His Court', rather than on what he himself originally found the meaning of the constitution, in this matter, to be.

On that score alone, the Chief Justice has not only failed the nation and failed the Constitution, miserably, he has decided to render a judgment for purposes that are in direct opposition to the very article and clause of the Constitution which provides for his office, his position and the purpose for occupying them.

Talk about biting the hand that feeds you... cannibals in Florida are the very least of our worries.


Ex-Dissident said...

It's kind of hard to see the point about Roberts making a popular decision as Obamacare is extremely unpopular in this country. Maybe things are different in DC an maybe the popularity of Obamacare was very differently represented in the the papers Roberts read...but it is hard to buy this argument. In any case, Roberts and the other 4 liberals should be fired for subverting the constitution, lies, and incompetence. This country has become a lawless place.

Karl Hussey said...

Please all of you who actually have to pay for med insurance, like myself,divulge inreases to every interested and involved party. With a $10,000 dedictible, my ins. premiums have gone up last year ti $11,000. I expect a 30-40% increase come the annual reset in mid-August. This will be part on the hidden Obamacare tax. The lame-stream media wil supress this info.Please all so burdened, shout this fiasco from the roof-tops!