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).

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US Supreme Court Upholds Obamacare Indivisual Mandate as "Tax"

Nancy Pelosi gushed they "made history" when the Congress passed the Affordable Care Act, aka "Obamacare".

Sure. As if it was a good history.

Today, SCOTUS (Supreme Court of the United States) ruled 5 to 4 with Chief Justice Roberts siding with the liberal judges in stating that "Obamacare"'s mandate that forces individuals to buy health insurance or face penalty is constitutional, but as a "tax". So the pathetic performance by Obama's Solicitor General in front of the Supreme Court didn't make a difference. Too bad.

Mr. Obama and his administration, and his party have been saying it is not a tax, but SCOTUS says it is. Obama's word on the SCOTUS decision? "Let's move forward..." Not a word about "tax".

The US stock market tanked on the news of the decision. Right now, tech-heavy Nasdaq is down 1.9%, Dow down 1.2%, S&P down 1.2%. The stock market, or what's left of it after incessant intervention and manipulation from the central bank, sees it correctly, for today, that it is a tax burden - the last thing that the economy needs right now.

Washington Post is a handy calculator to assess the impact on your household budget.

Using the calculator, if you have no insurance, 2 people in the household, annual adjusted gross income of $20,000 (barely above the federal poverty level), and you are married, you may be able to buy insurance in the federally assisted state insurance exchange for $800, or 4% of your gross income. If you do not buy the insurance, you will get penalized and required to pay the maximum fine of $1,390.

If your adjusted gross income is $40,000 (national average), then the cost of insurance at the insurance exchange will jump to $3,800, or 9.5% of your adjusted gross income. If you don't buy the insurance, you will be penalized with the same $1,390 fine.

If your adjusted gross income is $60,000, the cost of insurance at the insurance exchange will be $5,700, or 9.5% of your adjusted gross income. Penalty will be the same as in the previous two cases, at $1,390.

SCOTUS has decided it's all within the right of the Congress to tax citizens, as long as this Individual Mandate is a "tax".

GOP House Majority Leader Eric Cantor says a vote to repeal the law will be on July 11. Conservative media thinks the 2012 election has just become the 2010 election, a referendum on Obamacare.

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Kagan Didn't Answer

Senator Coburn's question on whether the government has power to tell Americans what to eat.

I'm yet to hear or see a spark of some intelligence from her. But no matter. She's expected to be confirmed anyway. Why bother wasting taxpayers' money on the charade?

Another one in, who received Goldman Sachs money. (Who isn't, at this point?)

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Supreme Court Guts Due Process Protection

while our attention is diverted to anything but this.

Supreme Court Guts Due Process Protection
(12/20/09 naked capitalism)

"Reader Walter passed along this distressing sighting from Chris Floyd’s blog. American civil liberties were gutted last week, and the media failed to take note of it.

"The development? If the president or one of his subordinates declares someone to be an “enemy combatant” (the 21st century version of “enemy of the state”) he is denied any protection of the law. So any trouble-maker (which means anyone) can be whisked away, incarcerated, tortured, “disappeared,” you name it. Floyd’s commentary:

"After hearing passionate arguments from the Obama Administration, the Supreme Court acquiesced to the president’s fervent request and, in a one-line ruling, let stand a lower court decision that declared torture an ordinary, expected consequence of military detention, while introducing a shocking new precedent for all future courts to follow: anyone who is arbitrarily declared a “suspected enemy combatant” by the president or his designated minions is no longer a “person.” They will simply cease to exist as a legal entity. They will have no inherent rights, no human rights, no legal standing whatsoever — save whatever modicum of process the government arbitrarily deigns to grant them from time to time, with its ever-shifting tribunals and show trials.

"It is hard to overstate the significance of this horrid decision. The fact that the Supreme Court authorized this land grab says we no longer have an independent judiciary, that the Supreme Court itself is gutting the protections supposedly provided by the legal system. Per Floyd:

"In fact, our most august defenders of the Constitution did not have to exert themselves in the slightest to eviscerate not merely 220 years of Constitutional jurisprudence but also centuries of agonizing effort to lift civilization a few inches out of the blood-soaked mire that is our common human legacy. They just had to write a single sentence."

It is not just about torture or indefinite detention of "enemy combatant". As the article says at the end, ANYONE can be deemed "enemy combatant" if a President of the United States and/or his underlings so declare:

"Yves here. The implications are FAR worse. Anyone can be stripped, with NO RECOURSE, of all their legal rights on a Presidential say so. Readers in the US no longer have any security under the law.

"Roman citizens enjoyed a right to a trial, a right of appeal, and could not be tortured, whipped, or executed except if found guilty of treason, and anyone charged with treason could demand a trial in Rome. We have regressed more than 2000 years with this appalling ruling. "

On the December 14, 2009 Order List of the U.S. Supreme Court, this is the one line that says the court has declined to hear the case and will let the prior ruling stand:

CERTIORARI DENIED

09-227 RASUL, SHAFIQ, ET AL. V. MYERS, RICHARD, ET AL.

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