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The Roberts Opinion (Fred Thompson's commentary)
Fred Thompson's America ^ | July 3, 2012 | Fred Thompson

Posted on 07/05/2012 1:42:07 PM PDT by Charles Henrickson

In 2005 I was asked by the Bush administration to assist Judge John Roberts during the Senate confirmation process for his nomination as chief justice of the United States. Over several pressure-packed days, and throughout the confirmation process, I felt I got to know him fairly well. I found him to be one of the most brilliant, thoughtful, and humorous people I’d ever met. Those qualities don’t always go together. It was clear he was going to be a major right-of-center voice on the Supreme Court for decades to come. So it is with a great deal of personal interest that I have considered his opinion in Sebelius and the commentary that has followed.

The Antithesis Of John Roberts

The chief justice is a good man, whose record over the whole of his career will probably be a good one, perhaps even a great one. However, I do not agree with this opinion. I believe the dissent got it right. I am well aware of the fact that a conscientious judge must sometimes rule in a manner that he personally disagrees with. But the majority opinion appears to be a result looking for a rationale, which is the antithesis of what I ever thought would be the approach of John Roberts. One of his new admirers described his opinion as “incoherent but brilliant.” That’s the most depressing thing I have read in a long time.

There is rampant speculation as to why Justice Roberts rendered the opinion he did. To many on the left it is believed that he was looking out for the Supreme Court as an institution. Liberals made it clear well in advance that if the Court struck Obamacare down they would attack the Court as politicized and illegitimate. They now say that the chief justice “put the country first” by the “clever” means of rejecting the government’s central Commerce Clause argument and instead achieving the same result by relying upon the federal government’s power to tax, an argument that was seen as peripheral at best by all the lower courts that had considered the issue of constitutionality. The same is true with regard to the litigants.

A Misguided View Of The Role Of The Court

Some on the right say that Roberts has actually hurt Obama’s chances for reelection; that he has undermined Obama’s constitutional rationale (the Commerce Clause), restricted his ability to pay for ObamaCare (giving states the right to reject the Medicaid provisions), and hung a big tax albatross around his neck during an election year (holding that the mandate penalty is a tax).

There may be some truth to all or part of this speculation. The problem is that none of these considerations are an appropriate basis for deciding a lawsuit. Cases are still supposed to be decided upon the law and the facts before the court. This may seem a mundane point in a discussion involving institutional and national salvation, but it’s true nevertheless. An umpire does not concern himself with the outcome of the game as he is calling balls and strikes.

Besides, once he gets on this slippery slope, what would make any justice think that he can even determine what is best for his institution or the country over and above a proper decision in the case before him? FDR attacked the Hughes Court, and it apparently bent to his will. That Court went down in history, not for putting the nation first, but for caving in to pressure. (The latest Rasmussen poll has the Supreme Court’s approval rating down 11 percent since the decision.)

I would like to think that none of this represents Roberts’ reasoning, But one thing is for sure: There are a lot of people out there on the left who think that it would be laudable if it did. That is a seriously misguided view of the role of the Court.

The desire to find a Reagan-like pony in all of this has caused some of my conservative friends to see one where none exists. In fact, many pessimistic liberals and optimistic conservatives have one thing in common: the view that somehow the opinion places new limitations on the use of the Commerce Clause, because it was deemed not applicable in Sebelius. They also think that the decision substantially restricts the conditions that the federal government can place on states regarding programs partially funded by the federal government. Unfortunately, in my view, both of these beliefs are wrong.

The majority opinion rejected the Commerce Clause as a valid basis for the individual mandate because, while the federal government can regulate commerce and commercial activity, it cannot compel economic activity, as the mandate attempted to do. The chief justice’s opinion contained a lot of music about the limitations of the Commerce Clause that is easy on conservative ears, but it was essentially the same set of points that conservative justices, usually in the minority, have been making for years. In 1942 the Supreme Court decided in Wickard v. Filburn that a farmer could be penalized for growing wheat on his own farm for his own consumption. Many view this as the high-water mark of the expansive interpretation of the Commerce Clause. The Court in Sebelius in no way overruled or rejected Wickard. On the contrary, the opinion pointed out that in Wickard the case involved the “activity” of growing wheat. In Sebelius there is no commercial activity on the part of one who chooses not to purchase health insurance. Wickard is just as egregious and just as valid as it has always been.

One of the few instances when the Court invalidated a congressional extension of the Commerce Clause was in the case of U.S. v. Lopez in 1995, when Congress tried to penalize gun possession in local school districts. In the Obamacare ruling, the chief justice wrote the following: “The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez . . . , but it is now well established that Congress has broad authority under the Clause.” So apparently Lopez was just a momentary glitch.

So we can be pleased that the Court did not take the unprecedented step of allowing the absence of activity to be regulated under the Commerce Clause, but that still leaves what I would guess to be 99 percent of future Commerce Clause cases — cases that will involve some sort of alleged “activity” on the part of the person or persons being regulated. We will still have the same ideological split on the Court, probably with the swing vote making a decision based upon how outrageous the federal overreach is. We are essentially where we were before with regard to the Commerce Clause. So, one cheer, not two. And certainly not three.

On the other issue I mentioned above, the Court decided that the federal government could not withdraw all of its previously committed Medicaid funding to a state on the grounds that the state decided not to participate in the Obamacare expansion of Medicaid. The Court did nothing, however, to prevent the federal government in the future from withholding money if a state reneged on previously-agreed-upon federal requirements. Here, the Court simply held that the feds could not egregiously withdraw previously-agreed-upon funding by imposing new requirements that a state could not or would not accept. This holding that states should not be subjected to a bait-and-switch operation was agreed to by seven justices, even though the administration was counting on being able to load part of the cost of Obamacare onto the states by means of this Medicaid requirement.

Again, we should be thankful for this status-quo result, but the political Left has no need for concern that this decision has done anything to diminish the federal government’s ability to call the shots if a state decides to take federal money.

So we are left with no silver linings and one major concern for the future that goes beyond Obamacare. It seems that, after this Court decision, while the government cannot make you buy broccoli under the Commerce Clause, it can tax you if you don’t.

Again, some optimists say that, since the Court relied upon the government’s taxing power, we are protected as a practical matter, since Congress would always be reluctant to pass a huge new tax. However, in the future Congress can insist it’s not a tax, just as it did this time. One would think that it would be politically more difficult to pull this off again, but there is no legal constraint to keep the congressional leaders from trying — deny it’s a tax during debate and have the government argue in court later that it is a tax.

The chief justice did remind us of one thing of overriding importance: We can’t sit back and count upon the courts to save us from ourselves. I believe that he made a mistake, but so did we. The real silver lining is that in a democratic republic we get another chance in November to fix it.

- Fred Thompson


TOPICS: Constitution/Conservatism; Government; News/Current Events
KEYWORDS: benedictroberts; fredthompson; obamacare; obamacaredecision; roberts; robertsdecision; scotus; thompson
In 2005 I was asked by the Bush administration to assist Judge John Roberts during the Senate confirmation process. . . .

The chief justice is a good man, whose record over the whole of his career will probably be a good one, perhaps even a great one. However, I do not agree with this opinion. I believe the dissent got it right.

1 posted on 07/05/2012 1:42:13 PM PDT by Charles Henrickson
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To: Charles Henrickson
The chief justice is a good man,

The same thing was said about Cesar. (It didn't end well.)

2 posted on 07/05/2012 1:54:22 PM PDT by concerned about politics ("Get thee behind me, Liberal")
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To: Charles Henrickson

Obama and the left have been proven correct in one thing - the court is political and activist. The good news is and has been that sovereign states can choose to ignore rulings from this politicized, activist and cowed group of political appointees. Those of us who agree with original intent are free to relocate and seek liberty in those states which can prove their adherence to republicanism. * see tagline


3 posted on 07/05/2012 1:57:47 PM PDT by atc23 (The Confederacy was the single greatest conservative resistance to federal authority ever.)
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To: Charles Henrickson

Well, there it is for all the Pollyannas around here.


4 posted on 07/05/2012 1:58:22 PM PDT by PetroniusMaximus
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To: Charles Henrickson

Nope.

Justice Roberts will always be remembered for this assinine opinion that affects over 20% of our economy. His record will never be considered great.


5 posted on 07/05/2012 2:00:03 PM PDT by FR_addict
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To: Charles Henrickson

Nope.

Justice Roberts will always be remembered for this assinine opinion that affects over 20% of our economy. His record will never be considered great.


6 posted on 07/05/2012 2:00:20 PM PDT by FR_addict
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To: atc23

Jury box of liberty .... CLOSED.


7 posted on 07/05/2012 2:00:37 PM PDT by MrB (The difference between a Humanist and a Satanist - the latter knows whom he's working for)
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To: Charles Henrickson
If Roberts is as good a man as Thompson says, he'll resign as soon as the Republicans get another majority, so the person who replaces him might give the country what the Republicans originally wanted from him.

Because this was a mandate....no, a tax, ...er....a penalty, Roberts should have erred on the side of the Constitution because of it's ambiguity - individual freedom and limited government.
He chose group think and the biggest government power grab since the New Deal.

He should do the right thing - wait, and then resign in disgrace.

8 posted on 07/05/2012 2:02:41 PM PDT by concerned about politics ("Get thee behind me, Liberal")
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To: atc23
You wrote:

Those of us who agree with original intent are free to relocate and seek liberty in those states which can prove their adherence to republicanism.

Sorry, but the only opt out refers to medicaid extension, and has nothing to do with the rest of the law.

9 posted on 07/05/2012 2:05:19 PM PDT by quimby
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To: Charles Henrickson; All

I prefer this much more critical quote from the article:

“But the majority opinion appears to be a result looking for a rationale, which is the antithesis of what I ever thought would be the approach of John Roberts. One of his new admirers described his opinion as “incoherent but brilliant”. That’s the most depressing thing I have read in a long time.”

“A result looking for a rationale...”

The question still hangs out there - WHY???


10 posted on 07/05/2012 2:08:00 PM PDT by txrangerette ("HOLD TO THE TRUTH...SPEAK WITHOUT FEAR." - Glenn Beck)
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To: Charles Henrickson
Am I supposed to FEEL GOOD about being betrayed by a brilliant and good man now?

This is another concerted effort (second round, I guess) to repair Roberts' reputation. With the Tyrrell's article today, Roberts = Fox, it is as if THE POWER THAT BE decreed that rubes on the right should appreciate this turd sammich.

Just like the concerted effort to NOT QUESTION Obama's natural born status last time around.

11 posted on 07/05/2012 2:08:39 PM PDT by Sir Napsalot (Pravda + Useful Idiots = CCCP; JournOList + Useful Idiots = DopeyChangey!)
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To: Charles Henrickson
The real silver lining is that in a democratic republic we get another chance in November to fix it.

Wow! The silver-lining garbage again. I am sick and tired of these arrogant elites trying their best to paper over this evil ruling.

This is the same Fred Thompson who is supporting NPV (National Popular Vote) movement. Hey Freddy boy do you even know why the Founders put the Electoral College mechanism into the United States Constitution?

NPV is just another deathblow to the United States Constitution supported by Fred Thompson.

Because of NPV alone Fred Thompson should be dead to any true Conservative.

12 posted on 07/05/2012 2:09:08 PM PDT by sand88
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To: sand88
Because of NPV alone Fred Thompson should be dead to any true Conservative.

Yep!

He's just another example of a Pretend Republican with Mitt Romney being the Proto-typical Pretend Republican.
13 posted on 07/05/2012 2:14:01 PM PDT by SoConPubbie (Mitt and Obama: They're the same poison, just a different potency.)
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To: sand88
This is the same Fred Thompson who is supporting NPV (National Popular Vote) movement.

Uh...hey Fred. 56% of the population is now collecting some kind of free handout. What's THAT tell you about this asinine idea?

Term limits for EVERYONE in Washington. None of them are able to see outside the beltway. They become citizen blind.

14 posted on 07/05/2012 2:20:43 PM PDT by concerned about politics ("Get thee behind me, Liberal")
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To: Charles Henrickson
No Fred, we can't correct it in November!! The decision set a precedence, and that can not be overturned with a vote in November!!! Maybe if it is proven that he is (was) ineligible the Roberts Court could overturn all of the bills ha signed!!
15 posted on 07/05/2012 2:27:03 PM PDT by Forrestfire (("To educate a man in mind and not in morals is to educate a menace to society." Theodore Roosevelt))
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To: quimby

Do you think the Justices actually read the 2700 page Bill? Nobody in Congress did.


16 posted on 07/05/2012 2:28:49 PM PDT by afraidfortherepublic
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To: afraidfortherepublic

Only the lawyers that write the regulations used to prosecute/persecute the people will be reading it.


17 posted on 07/05/2012 2:37:43 PM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Charles Henrickson
Still have an I'm with Fred coffee cup after contributing to this creeps campaign. First he hawks reverse mortgage loans and then comes up with this nonsense.

Hate to say it but it appears most of the Republicans in office or running for office are as despicable as this looser.

God help the republic

18 posted on 07/05/2012 2:37:57 PM PDT by caltaxed
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To: FR_addict

Roberts’ ruling, while we don’t respect the convoluted reasoning on which it was issued, does provide us with three positives. They are: 1) It was ruled applicable as a tax, not as a function of the commerce clause. 2) It can be repealed by a majority of both chambers of congress, not requiring 60 senate votes. 3) Since is was ruled as a tax, it can still be ruled as unconstitutional. This tax cannot be litigated against until it goes into effect. I’m going to assume that a tax that is not being paid to a governmental entity is unconstitutional, since the taxes will go to the existing healthcare agencies, this may prove to be its downfall.

The ruling also provides conservatives with the following benefits. 1) It puts Obama in the position of taxing the American people, something he claimed it didn’t do. 2) It provides great motivation for conservatives to show up at the polls. 3) It puts congressional democrats under more pressure than if the law had been overturned. It could cause the senate to go republican.

My take on this is that Roberts wanted to f**k with Obama, kind of like pulling wings off a fly and letting it squirm.


19 posted on 07/05/2012 2:49:20 PM PDT by The Kingwood Kid (Texan by birth, Republican by choice)
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To: concerned about politics

Considering the fact that Thompson is a national popular vote pimp, I can’t help but question his judgement on most other things.


20 posted on 07/05/2012 3:08:44 PM PDT by cripplecreek (What does it profit a man if he gains the whole world but loses his soul?)
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To: Charles Henrickson
...but there is no legal constraint to keep the congressional leaders from trying — deny it’s a tax during debate and have the government argue in court later that it is a tax.
You might want to read the transcript of the oral arguments there, Fred.

Transcript...@Supreme Court: The Health Care Law And The Individual Mandate
It's got this little number in it...

GENERAL VERRILLI: I don't think that that's a fair characterization of the actions of Congress here, Justice Kagan. On the — December 23rd, a point of constitutional order was called to, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to 39 on that proposition.

The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power.

It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's — not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.

Sounds to me like Congress knew it was a tax during debate.

21 posted on 07/05/2012 3:15:09 PM PDT by philman_36 (Pride breakfasted with plenty, dined with poverty, and supped with infamy. Benjamin Franklin)
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To: afraidfortherepublic
Do you think the Justices actually read the 2700 page Bill? Nobody in Congress did.

No, but in defense of the court (ugh), their job was to decide based on the issues presented to them. Congress creeps have no such excuse.

22 posted on 07/05/2012 3:21:34 PM PDT by quimby
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To: PetroniusMaximus
Well, there it is for all the Pollyannas around here.
Would you read my reply #21 and then explain to me how Mr. Fred can claim Congress can "deny it’s a tax during debate" after what the Solicitor General said in Court?

Doesn't it seem pretty clear from his comments that Congress, on both sides of the aisle, knew they were addressing a tax, no matter what it was called?

23 posted on 07/05/2012 3:28:18 PM PDT by philman_36 (Pride breakfasted with plenty, dined with poverty, and supped with infamy. Benjamin Franklin)
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To: PetroniusMaximus; All
Here's another article with things more closely laid out...

@It Was Always a Tax
In part...Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers.

Snip...House Democrats likewise argued that Obamacare is constitutionally justified as an exercise of Congress’s power to levy taxes and spend money. Thus, Rep. George Miller of California said:

The bill contains an individual mandate to either obtain health insurance or pay a penalty. This provision is grounded in Congress’s taxing power but is also necessary and proper–indeed, a critical linchpin–to the overall effort to reform the health care market and bring associated costs under control throughout interstate commerce.

A really good article, IMO.
Be sure to read this...

The brief that administration lawyers filed on behalf of President Obama argued at length that the mandate is a tax. At risk of boring our readers, I am going to reproduce that entire section of the brief. You shouldn’t feel obliged to read it all, but it is actually quite interesting:
II. THE MINIMUM COVERAGE PROVISION IS INDEPENDENTLY AUTHORIZED BY CONGRESS’S TAXING POWER
A. The Minimum Coverage Provision Operates As A Tax Law

Is Mr. Fred right that it wasn't covered in debate??

24 posted on 07/05/2012 3:40:58 PM PDT by philman_36 (Pride breakfasted with plenty, dined with poverty, and supped with infamy. Benjamin Franklin)
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To: Charles Henrickson

Chief Roberts just passed the buck for his cowardly decision right down to average American citizen. WE are to fault for not being intelligent enough to elect the right people to Congress.

Well, I have one question to ask the brilliant and stellar Chief Roberts, did you feel that way when Congress vetted and approved your power on the Supreme Court.

It was Congress, a Congress we elected who gave you your job but I have a feeling, at the time, you were pretty darn grateful that the voting public was intelligent enough to elect a Congress that met your lofty reputation.

You sir, are the walking, talking example of the Peter Principle.


25 posted on 07/05/2012 3:43:20 PM PDT by RetSignman
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To: PetroniusMaximus; All
I rather liked this towards the end... Hey, that’s what you get for reading a web site that is written by lawyers. But even if you didn’t follow all of that, I am sure you got the point: the Obama administration argued vigorously, and at considerable length, that the Obamacare mandate is a tax. For Obama and his surrogates to deny now that Obamacare is a tax, or to express surprise that the Supreme Court has so held, is beyond disingenuous. Of course, such dishonesty is par for the course for the president and his minions.
26 posted on 07/05/2012 3:50:47 PM PDT by philman_36 (Pride breakfasted with plenty, dined with poverty, and supped with infamy. Benjamin Franklin)
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To: Charles Henrickson

Oh, shut up, Fred.


27 posted on 07/05/2012 4:08:15 PM PDT by Eric in the Ozarks
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To: Charles Henrickson

Justice Roberts actually echoed the same reasoning as a prior Justice Roberts in regarding the federal power to tax and spend for the “general welfare,” in U.S. v. Butler, 297 U.S. 1 (1936) regarding the Agricultural Adjustment Act. http://supreme.justia.com/cases/federal/us/297/1/

That Justice Roberts (for the Court) stated:

“The clause thought to authorize the legislation, the first, confers upon the Congress power ‘to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. ...’ It is not contended that this provision grants power to regulate agricultural production upon the theory that such legislation would promote the general welfare. The government concedes that the phrase ‘to provide for the general welfare’ qualifies the power ‘to lay and collect taxes.’ The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted. Mr. Justice Story points out that, if it were adopted, ‘it is obvious that under color of the generality of the words, to ‘provide for the common defence and general welfare’, the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers.’ The true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision for the general welfare.”

In that case, as in the current case, the Constitution grants the power to lay taxes for the common defence and general welfare of the United States. However, this does not extend to the creation of a federal program that exceeds the limits of the enumerated powers and invades or compels an area reserved to state jurisdiction.

Looks to me that these principles were decided decades ago.


28 posted on 07/05/2012 4:10:39 PM PDT by marsh2
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To: Charles Henrickson

OK fred.....is he being Blackmailed or Threatened because his two ADOPTED children were ILLEGALY ADOPTED. is he being Blackmailed because he is a Bi-SEXUAL or is he just a DUMBASS LIBERAL???? Which one, FRED????? There are NO other REASONS.....well except the MOST pathetic one.....he doesn;t want to read bad things about himself in the newspapers!!! SO WHICH ONE IS IT....FRED??? JOHNNY???


29 posted on 07/05/2012 4:11:20 PM PDT by Ann Archy ( ABORTION...the HUMAN Sacrifice to the god of Convenience.)
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To: concerned about politics

Good old Fred is not a great judge of character. He sounds like his job was to see if Roberts was a nice guy, maybe he is but his judgement is horrid..


30 posted on 07/05/2012 5:04:23 PM PDT by goat granny
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To: Charles Henrickson
Sounds like he disagreed sharply with the ruling but just didn't want to attack Roberts personally.

That's an honorable stand and Thompson doesn't deserve abuse for not wanting to get personal.

BTW, thanks for the photo. Judging from the hair, Roberts may not be that gay after all.

31 posted on 07/05/2012 5:16:57 PM PDT by x
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To: Charles Henrickson
"There is rampant speculation as to why Justice Roberts rendered the opinion he did."


32 posted on 07/05/2012 5:22:03 PM PDT by Flag_This (Real presidents don't bow.)
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To: Charles Henrickson

bump for later


33 posted on 07/05/2012 6:13:47 PM PDT by Christian4Bush (PSA. As of 7/05/12, 124/199 days 'til we vote out/take out the trash. (11/6/12, 1/20/13))
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To: Charles Henrickson


The chief justice did remind us of one thing of overriding importance: We can’t sit back and count upon the courts to save us from ourselves. I believe that he made a mistake, but so did we. The real silver lining is that in a democratic republic we get another chance in November to fix it.

- Fred Thompson “

I’m afraid your mistaken mister Thompson, no matter what happens in November. Washington will no longer be restricted to respecting any of our rights.

There is no way we can ever hope to win every election from now on to eternity. Sooner or later anther Obama will lie and cheat his way back into power and without a Constitution to protect us we will be subject to his lawless whims.


34 posted on 07/05/2012 6:28:00 PM PDT by Monorprise
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To: Charles Henrickson; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; ...

FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.

35 posted on 07/05/2012 8:22:42 PM PDT by BuckeyeTexan (Man is not free unless government is limited. ~Ronald Reagan)
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To: atc23

His opionion will live in infamy.


36 posted on 07/05/2012 8:51:26 PM PDT by ully2
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