Friday, June 29, 2012

Roberts' deep game?

If I were offered an opportunity to tar and feather the Chief Justice, I'd gladly chip in for the tar. His vote upheld Obamacare, including the individual mandate, a grossly unconstitutional act.

This issue has ignited the conservative sphere. Yet some conservatives are suggesting a different perspective than the "Roberts betrayed us" view to which I and most other conservatives are inclined. They make some interesting points.

George Will and Elizabeth Scalia have great posts on Roberts' 'strategy', and the clearest discussion is from Timothy Dalrymple in his essay Five Possible Silver Linings in the Obamacare Decision.

Dalrymple lists the bright spots:

1. I know a lot of conservatives are writing now on how the power of the federal government just expanded dramatically, and they may be right. But I think it’s possible that the long term effect will be rather to narrow — not legally but practically and actually — the sphere of government power. First of all, placing the ACA under the Taxation power instead of the Commerce power places greater limits on how that power can be used and dramatically softens the penalty for non-compliance (you simply pay a tax, you cannot be jailed or otherwise punished for failure to purchase health insurance). Congress cannot compel you to purchase insurance; it can only compel you to pay a non-extreme, non-coercive tax if you wish not to purchase insurance. Second, by laying waste to the Commerce Clause argument and making clear that this sort of thing can only be done through the taxation power, the decision may make it harder to pass these sorts of laws in the first place. You cannot hide in the subterfuge of the Commerce Clause — or, if you try, everyone will say, “No, we know better now, this is and must be a tax.” Roberts’ decision will press new social welfare initiatives out of the commerce clause and into the tax code — and passing a new tax is much more difficult as a political matter than passing a new regulation. 
2. By placing the ACA under the umbrella of the tax power, Roberts may have made the ACA easier to overturn by several orders of magnitude. The ordinary process, of course, requires 60 votes to overcome a filibuster in the Senate. But when it concerns budgetary matters, including taxes (like the Bush tax cuts), 51 votes are sufficient to put the law on hold for 10 years. So, theoretically, 51 Republicans will be capable now of overturning the ACA at least for ten years (at which point it could be reviewed again). Fifty-one Republicans could have attempted this in any case, but now they can do so with much greater plausibility because this is a matter of taxing and spending and not regulation of commerce. 
3. The importance of the ruling on states and Medicaid should not be lost in all of this. The administration’s claim that it could remove all medicaid funding for the states that refused to expand medicaid in the way the administration wants was rejected. The administration can condition new, additional funding on states’ cooperation, but not the preexisting funding. This is a big difference. It will be much easier for states to opt out of the medicaid expansion. 
4. The spin war will be interesting to watch. President Obama and his allies clearly did not want to label the mandate as a tax – he denied it in unequivocal terms to George Stephanopolous. Now they will have no choice. President Obama and Congressional Democrats just became the owners of a considerable tax hike – what one of my colleagues is calling “The most deceptive tax increase in American history.” The Obama campaign will frame it as a tax on “the rich” — since you only pay the tax if you are a taxpayer who is capable of purchasing coverage but chose not to purchase it. But look for Republicans to start referring to the “Obamacare Tax.” This is one way in which this can redound to the benefit of Republicans: everyone from Romney on down can now press his opponent with the question, “Are you for the Obamacare Tax or against it?” 
5. Finally, and perhaps most importantly, I think this places the central issue of the election very clearly in front of the voters: Do you believe that the government ought to have more power over your life, or do you think it should have less? The Supreme Court is not going to save us against our own poor electoral decisions, if the people we elect go on to pass foolish taxes. Conservatives cannot rely on the Supreme Court as a backstop. So I think you will see the Tea Party movement revived, less focused on internecine battles and more focused again on the fundamental questions of the role of government.

The conservative revisionists suggest that Roberts is setting up the fools and crooks who pushed this monstrosity on us for a huge fall. How?

Roberts is telling conservatives:

'If you are to win, you must win in the political arena. You must not make the error the liberals have made in the past half-century, by fighting your fights in the courts (on abortion, school prayer, affirmative action, etc) and neglecting to build the political power to prevail legislatively. I am providing you with the framework to win this fight. Obamacare is a tax, a massive tax, on the middle class. It is not 'regulation of interstate commerce' or any such nonsense. Democrats must be forced to defend it at the polls. As a tax, rather than a regulation, it can be destroyed with 51 votes in the Senate, not 60. The way to beat Obamacare is not to go the easy way and get the courts to do your work for you. That's a half-solution. The way to beat Obamacare is to end the political careers of the gangsters who created it. I've given you some useful tools.'

Gary Hamilton likens Roberts' opinion to playing bridge:
Ever played Bridge? 
You bid the hand in such a way that certain things are communicated to your partner, and then you trust that your partner will understand the bidding and play correctly. During play, you play your cards both in response to what the opposition plays and in such a way as to take advantage of your partner’s position. 
Bridge is a complex game with a significant trust component. 
I believe Roberts is playing Bridge here. 
I’m guessing (yeah, I said I’m trying not to speculate) that his reading of the liberal justices was such that if he sided with the manifest majority, and struck down only the funding vehicle, the law would survive and be shored up through other, more devious measures.
By correctly classifying the funding vehicle as a tax, he has played a card that exposes the liberal reality and invites a response from Congress as well as the electorate. 
By acknowledging that the *electorate* is responsible for its political choices and therefore its politicians and therefore, ultimately, its laws, and by making it clear that bad law and bad policy may not, in fact, violate the Constitution, since the Constitution was not written with the explicit injunction that “legislators may not write stupid laws,” he plays the card that clarifies the path to eliminating not only the heinous Health Care Sabotage machine, but also the fools and crooks who gave it to us. 
Roberts is looking across the table at us now. 
He has to trust that the electorate and Congress will look at the cards and play correctly to win the hand and ultimately the game. He can’t signal us with a kick under the table or tap out a strategy with his pen or convey in any fashion what he meant by his play. 
Play now moves to us. 
He has given us clarity: Obama lies, taxes rise. Repeat that loudly. 
He has stated the uncomfortable truth: SCOTUS can’t save you if you insist on voting in stupid legislators and evil presidents; your salvation lies entirely within your own hands. 
It must have been tempting to side with the other conservative justices and strike down the vulnerable parts of the law, but that just allows the now injured monstrosity to limp along, doing massive damage as it tramples the economic structure of the nation. 
In Bridge, there’s a play error known as “trumping your partner” where you play a card in “trumps” to win a trick that your partner would have won anyway because your opponents have no higher value in the suit he played. It’s an error because you give up a play that would have won a later trick with that same card. It can make the difference in winning the hand. 
Let us not trump the Roberts decision with a bunch of emotional chaff that hands the ultimate victory to the fools and crooks. 
Our play is simple, really: change out the president, change out the bulk of the Senate, increase the House majority. Hey, I said simple, not easy. 
With the right legislators in the chairs and the right president in the Oval, the whole damned Health Care Sabotage law can be expunged. That, and a whole host of other fires this administration has started can be extinguished. 
SCOTUS can’t save us from stupid. That’s our job.

I'd still probably buy the tar, but the revisionists may be right. This may be a pyrrhic victory for Obama.

Roberts may be playing a deep game.  


  1. a grossly unconstitutional act.

    Today: surgeon Egnor instructs Chief Justice about constitutional law.

    Tomorrow: Chief Justice Roberts tells Egnor "you're doing it all wrong" about brain surgery.

    Time to get the popcorn!

    1. This cult of expertise is getting a little much, Anonymous.

      We're allowed to disagree with supreme court decisions. They aren't unquestionable demigods.


    2. The other four justices disagreed with the decision too.

      All are supposed experts on the law. One group of four experts disagreed with the other group of five experts.

      Experts have different opinions. They can't both be right.

      Unless you're prepared to agree with every decision the court has ever handed down, I don't think your argument has much merit. If you are prepared to agree with every decision, you're defending some pretty horrific rulings.

      Little John

    3. Not to mention the fact that the court sometimes overturns the court. Bowers v. Hardwick/Lawrence v. Texas, for example.

      The court can't be wrong, and yet the court contradicts itself. Explain this mystery to me.

      Little John

    4. Of course experts can be wrong, but they tend to be less wrong than the population an average. That's why people rely on their expertise.

      It's a relatively new thing for the right-wingers to yell "Down with the experts!" It leaves me wondering whether these people are following their own ideology. Have they stopped going to the dentist and started filling their own cavities? Ditched their family physician and turned to self-medication? Turned off the Weather Channel and predict their own weather? Fired their lawyers and argue their cases themselves? If you answered yes to any of these questions, I'd like to hear how your life has improved without the experts.

    5. "It's a relatively new thing for the right-wingers to yell 'Down with the experts!'"

      Nice straw man. No one's yelling that.

      We're simply disagreeing with the result of a pivotal supreme court decision, which is our right. If one other justice had gone the other way, the leftists would be doing what we're doing right now. Leftists were upset with the case of Citizens United v. FEC. Were they screaming "Down with the experts"?

      NO? They weren't?

      What Anonymous argued above is called appeal to authority. It's when you attempt to win an argument not by its merits but by citing an unquestionable expert who is supposedly on your side. It isn't so much an argument as it is an attempt to shut up the opposition.

      He isn't arguing that the judges are right because the case before the court compelled them to vote the way they did. We could have a debate about that all day.

      No, he's arguing that they're right because they're experts and we mere mortals shouldn't second guess them. He wouldn't be making this argument if John Roberts hadn't made a last second decision to switch. In any case, we can't really debate with that argument. The experts have spoken.

      You tread a finer line. You won't come out and say that the experts are always right. But you do say that they're right more often than laymen are. So, while experts might get it wrong, we aren't in a position to judge if they are wrong, so shut up.

      It almost seems like a sneakier version of appeal to authority.

      No, I don't do my own dentistry. I do, however, use my own brain.


    6. I thought atheists didn't ask anyone to take anything on faith.

      When you tell someone that the experts know better, that's asking to be taken on faith. Show me why they're right, don't tell me to accept it on their authority. I can be persuaded, but you aren't even trying. Your argument amounts to "For the judges tell me so."

      Which is really no different than arguing "For the scriptures tell me so." If you've ever heard that the Bible condones slavery, I'll tell you that the Supreme Court of the United States has done the same. If you've ever heard that the Bible is racist, I'll tell you that there's plenty of racism within the decisions of the Supreme Court. There's one thing that the Bible most certainly does not condone, and that' killing children in the womb. I can't say the same for the Supreme Court.

      Also, I agreed with TRISH about Oleg's bigotry. It became apparent that he is fanatically dedicated to his own opinions and prejudices.


    7. Jq said: "Show me why they're right, don't tell me to accept it on their authority. I can be persuaded, but you aren't even trying."

      They're not going to do that, and there's a reason they won't. If they stoop to explaining why the judges are right, they're allowing for the possibility that they could be wrong. So they simply say that we are in no position to evaluate the superior legal thinking of the nation's finest legal minds.

      And they'll keep saying that until the next decision they disagree with, then they'll cry like little bitches.

      The Torch

    8. Hey, all of you who think this a great decision and think we shouldn't question. I've got a question I'd like you all to answer.

      In 2005, President George W. Bush nominated Harriet Meyers to the Supreme Court. She wasn't a brilliant legal mind, she was the head of the Texas lottery. Senate minority leader (now majority leader) Harry Reid submitted to Bush a list of names of acceptable nominees. Meyers was on the list. Reid supported her and so did many Senate Democrats. Conservatives were up in arms and they rebelled against Bush. Bush eventually withdrew the nomination to keep the base happy.

      So tell me, if the nomination had stood and the Senate had confirmed her, would Harriet Meyers have become as unquestionable as the others on the court the moment she took her seat? Or would she have been a nincompoop?

      Texas state lottery commissioner to legal god in one vote. Amazing.

      The Torch

    9. Little John said: "Not to mention the fact that the court sometimes overturns the court. Bowers v. Hardwick/Lawrence v. Texas, for example."

      That's real easy, dude. In Bowers v. Hardwick they were dead wrong because they made the wrong decision. Gay people had their feelings hurt. In Lawrence v. Texas, they were totally right because their brilliance is beyond our ken. They can't be wrong. They're like a council of nine infallible legal popes. (Oddly enough, nine infallible legal popes, who, despite their infallibility, disagree with each other. Weird.)

      The Torch

    10. Show me why they're right, don't tell me to accept it on their authority.

      Fortunately for you, in the U.S., Supreme Court rulings are accompanied by publicly available opinions in which the judges explain their reasoning. You don't need to "accept it on their authority". They tell you, explicitly, why they ruled in the way they did.

      But I suppose actually reading the opinion would be too much to ask of you.

  2. Yet, what does it say about our nation that such subterfuge -- such dishonesty in life of the polity -- has become necessary?

    1. I fear it is a forced synthesis, Ilion.
      Designed to divide and rule. Designed to force the use of deception as the method by which any sort of change or reform must be made. It resembles war far more so than politic.
      Look for an increase in such necessities and a decrease in freedoms.
      I truly pray it may be reversed or reformed, but I have serious doubts about it this far along.

  3. Some people see dishonesty wherever they look - particularly in their political opponents. This suggests an inability to see the other side as honest & sincere people that simply hold different opinions.

    1. That's cause they aren't.


    2. TRISH, and you accuse others of bigotry? Mote, beam, and all that.

    3. I agree entirely - people like Trish are not honest or sincere.


    4. Oleg, Yes, I call others bigots. Like you. There was a chorus of agreement, so I'm not the only one.

      I see you've memorized a few verses of scripture that you think you can use to trip me up. Typical anti-theist.

      NA: To say that Oleg is a bigot is the pinnacle of honesty.


    5. TRISH,

      What makes it funny is that you are unable to produce a single quote from my comment that would implicate me in bigotry. You appeal to others echoing your assertion as if it were a compelling argument. Repeating a lie does not make it true.

    6. Here's yesterday's bigoted comment:

      "I support that! Let the teacher also explain why God chose to give those rights exclusively to white males with a certain minimum level of income. In fairness, he became less picky as time progressed and included the rest of the population. No doubt, thanks to lobbying efforts of Mary."

      You believe that the only lessons that can be taught in school are the ones you agree with, even if this amounts to censoring history. That fits the dictionary definition of bigotry that I provided from Merriam-Webster yesterday.

      You will certainly not accept that you are a bigot, just as bigots everywhere do not. Never let it be said that I couldn't provide an example of your bigotry. I most certainly have.


    7. TRISH, which part of that comment contains expressions hatred or intolerance? You don't say. Instead, you accuse me of holding certain beliefs, namely that "the only lessons that can be taught in school are the ones [I] agree with, even if this amounts to censoring history." Well, guess what? There are three problems with this:

      1. You don't know that I hold such beliefs.
      2. I don't hold such beliefs.
      3. I explicitly said on another thread that I do not want history censored.

      So, for those who have a short attention span, let's review.

      A. There was no hatred or intolerance in my comment.
      B. TRISH imagines what I believe in and that imaginary belief makes me a bigot.
      C. I don't hold such a belief and I have previously said so in a conversation with her.

      What does this make TRISH? You guessed it, a dork.

    8. Meanwhile, TRISH makes one bigoted comment after another. Here is a conversation from earlier today:

      Anonymous: Some people see dishonesty wherever they look - particularly in their political opponents. This suggests an inability to see the other side as honest & sincere people that simply hold different opinions.

      TRISH: That's cause they aren't.

      She refers to all of her political opponents as liars. That is of course bigotry.

  4. This is why you can't have nice things.

    1. Care to elaborate on that thought, Modus?

    2. Because to get something, anything, compromises were required, which will be gleefully exploited to break it. Not to make it better, but to break it.
      And do you think the GOP will try to fix the actual problems (skyrocketing rates, recision, etc) the ACA nibbles around the edge of? How could they, since the Party of Ideas has turned against those ideas (see: Individual Mandate) when the other party incorporates them, naively, in their own bills in order to gain favor with Republicans? And why would we expect them to as, in the past, they promptly forgot about those ideas once the threat of the other side actually doing something passed (as with Hillarycare). Now they just have to poison the well for the things that even Republicans like about Obamacare (but only if they aren't called Obamacare), and the old status quo will be secure, ready for the GOP to ride in and do nothing. The old status quo*, apparently, was working fine for the GOP.

      * plus the Medicare Modernization Act, whose legislative history was almost as bloody as the ACA, but with meat grinding and favor exchanging mostly in the House. Also, without Governor Palin wildly poisoning the dialogue with "Death Panels!".

    3. Yes, some pretty stupid Republicans (especially one named Mitt Romney) decided that an insurance mandate was a "free market solution." It isn't.

      Now some good Republicans, namely the conservative ones, have to reclaim the high ground and fight back against this nonsense. By no means do I accept the idea that we just have to sit back and accept this awful Obamacare because it would be "hypocritical" not to, in light of the fact that Romney had a similar plan in his home state. Romney was wrong too. That's a completely consistent position.

      I wonder how many of you liberals think you have to support the war in Iraq just because John Kerry, Hillary Clinton, and Joe Biden all voted yes.


      Little John

  5. When your president appoints people to a position such as a supreme court justice, (5 seated republican-appointed), then they come to a decision that you dont like, oh well.

    "There's one thing that the Bible most certainly does not condone, and that' killing children in the womb. I can't say the same for the Supreme Court."

    Apparently all life is precious to the god of the bible, unless it is a fetus conceived out of wedlock, or conception happens within an "enemy" nation that doesnt worship him. The bible seems to say that abortion is acceptable if God performs it or he commands it to be done through contaminated water or by violent force.

    Take a look at Hosea 13:16, Hosea 9:14 Samuel 15:3, Numbers 31:15-18, Numbers 5:11-21 and 2 Kings 15:13.

  6. If we could take out the tax thing and whether or not the decision is constitutional for a minute, can I ask whether this decision means that more, or less people will receive affordable healthcare?

    This is information that I'm having a hard time getting, and I'm genuinely curious.


  7. If I were offered an opportunity to tar and feather the Chief Justice, I'd gladly chip in for the tar.

    The resort of a Klansman to a legal decision he doesn't like. Sure, you protest about how much you hate the Klan, but when the chip are down, your true colors come out. How does that white hood fit?