Friday, June 29, 2012

Obamacare: Did Chief Justice Roberts Flip in the Last Minute?

Interesting tidbits regarding the surprising US Supreme Court decision to uphold the Obamacare individual mandate, albeit as a tax. (I say surprising because even the people betting at the Intrade lost their shirts on this.)

Two scholars, one a law professor at University of Boulder and the other an economic Professor at Barkeley, say Chief Justice Roberts may have changed his position at the last minute and sided with the liberal minority - i.e. dissent - and turned that side into the "majority opinion" in the 5 to 4 decision.

They cite the wording of the eventual "dissent" from Justices Thomas, Scalia, Alito and Kennedy referring to Justice Ginsburg opinion as "dissent".

From ABC News, quoting Yahoo News (6/29/2012):

Did Justice Roberts change his Obamacare vote at the last minute?

Did Chief Justice John Roberts decide to join the court's liberal wing and uphold the individual mandate at the very last minute?

That's the theory floated by Paul Campos, a law professor at the University of Boulder, and Brad DeLong, a Berkeley economics professor and former Treasury Department official under President Clinton. Campos wrote Thursday in Salon that the dissent had a triumphant tone, as if it were written as a majority opinion, and that the four conservative justices incorrectly refer to Justice Ruth Bader Ginsburg's concurring opinion as a "dissent."

"No less than 15 times in the space of the next few pages, the dissent refers to Ruth Bader Ginsburg's concurring opinion as 'Justice Ginsburg's dissent,'" Campos wrote.

DeLong pointed out on his popular blog that in Justice Clarence Thomas two-page note on the dissent, he refers to the conservatives' dissent as the "joint opinion" instead of the "joint dissent."

Campos hypothesized that the conservative justices may have intentionally left these typos as a way of signaling to the outside world that Chief Justice Roberts abandoned them at the last moment.

Lyle Denniston, the long-term courtwatcher who writes for SCOTUSblog, tells Yahoo News that he "can't account for the wording of the Thomas opinion."

But Dennison disagrees with Campos that it's incorrect for the dissenters to refer to Ginsburg's opinion as a dissent. Ginsburg wrote that she thought the individual mandate should have been upheld under the Commerce Clause, and she was in the minority in that respect.

Kennedy and the four conservative justices, including Roberts, said the mandate would be illegal under the Commerce Clause. Roberts upheld it as a tax, instead, with the four liberal justices partially concurring.

"My own sense, from reading the Roberts opinion, is that it was written as a majority opinion in all of its drafts, and that various Justices joined or dropped off," Denniston told Yahoo News. "I think he was determined to try to uphold some key parts of the law, if he could find a way, partly because...he has grown concerned about the public perception that his Court is a partisan-driven Court."

There are other scholars who think Justice Roberts may have flipped at the last moment. Here's more from Mother Jones (6/28/2012).


Anonymous said...

same thing as abortion, they just made something up out of thin air, this time the right to tax
"Right to privacy
The Court declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty a"
Burger was also a trojan horse chief justice

Anonymous said...

Time will tell, but the reference to Obamacare now finally as a "Tax" will change the political discussion and landscape of this issue forever now that everyone realizes this is the largest tax fraud in U.S. history.

Anonymous said...

A Huge Bailout for Another Failing Industry
ObamaCare as Corportists United

In an eagerly anticipated opinion on the Patient Protection and Affordable Care Act, colloquially known as “Obamacare’, an unusual alignment of justices upheld the Act nearly entirely. The crucial part of the decision found the ‘odd bedfellows’ combination of Chief Justice Roberts joining the four ‘liberal’ justices to uphold the ‘individual mandate’, the section of the law requiring all Americans to buy health insurance from private health insurance companies. The alignment is especially strange given the lengths to which Justice Roberts had to go to support his convoluted reasoning.

He accepted the argument that the individual mandate was unconstitutional as an exercise of the Commerce Clause becuase it required a commercial activity that had never hitherto existed, i.e. the purchase of health insurance by someone who had never purchased it. He accepted the argument that the individual mandate was unconstitutional as an exercise of the “Necessary and Reasonable” Clause. And he rejected the argument that the payment of a penalty to the IRS by those who refused to comply with the individual mandate (“refuseniks”) was a “tax” subject to a law that says you first have to pay the tax before you can sue for a refund.

But then he turned about and found that the money that the IRS can take from a refusenik WAS a tax and NOT a penalty. Under that reasoning, the ‘individual mandate’ requiring everyone to buy health insurance from a private company becomes a ‘tax law’ and therefore constitutional.

Full article:

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