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John Roberts' Arrogance
Real Clear Politics ^ | 7/03/2012 | Michael Gerson

Posted on 07/03/2012 2:01:57 PM PDT by nerdgirl

But judges are also not hired as political philosophers, Burkean or otherwise. Their legitimacy comes from a credible application of the law. And the outcome of the health care case came down to one point of law: Roberts' interpretation of the statute as a constitutional tax rather than an unconstitutional mandate. In his ruling, Roberts admits this view is hardly the most obvious one. "The question is not whether that is the most natural interpretation of the mandate, but only whether it is a 'fairly possible' one."

The problem is that Roberts' interpretation is not fairly, or even remotely, possible. If the law had been written in the Roberts version -- as a regressive federal tax on the uninsured -- there is no chance it would have passed Congress. More to the point, the law that Roberts describes would have covered a different number of the uninsured. Academic studies indicate that people respond differently to tax penalties than they do the legal mandates. "When the imperative to buy insurance," notes Yuval Levin, "is instead presented as a choice between two options, more people will likely choose the cheaper option (which, for almost everyone, will be paying the tax rather than buying the coverage)."

Why did Roberts not account for this policy distinction? The most natural interpretation is that he didn't know anything about it. Which is precisely the point. Roberts is not a health policy expert. His clever reinterpretation of the health law would actually change its outcome. This is not an alternate reading but an alternate universe.

(Excerpt) Read more at ...

TOPICS: Constitution/Conservatism; Government; News/Current Events
KEYWORDS: impeachroberts; roberts; scotus
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To: jwalsh07
Judicial restraint can't just mean "judges doing things I approve of." It has to have a more objective meaning. Here's one attempt to define it in non-polemical terms:

Judicial restraint is the idea that judges should defer to the will of lawmakers whenever possible, turning to the U.S. Constitution on only the rarest of occasions in order to nullify a duly-enacted law.

Roberts may have made the wrong decision. You can argue about whether he really was restrained in his ruling, but compared to throwing the entire law out, reinterpreting its basis probably qualifies as judicial restraint. That doesn't make it a good decision, but overturning the law would not have been an exercise of judicial restraint in the way that judges use the phrase.

21 posted on 07/03/2012 4:09:29 PM PDT by x
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To: maxwellsmart_agent
If people could not afford it in the first place, how can fining them make sense when they need health care, make them pay for it and the fine involved.

Well, you see, it's actually a tax, not a fine, so it's okay. At least according to John "Please Like Me" Roberts, the most emotionally insecure Justice in American history.

22 posted on 07/03/2012 4:18:40 PM PDT by Repeal 16-17 (Let me know when the Shooting starts.)
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To: kjo

You are just now seeing the parties are bunk? Conservatives need to quit trying to take over the GOP, it’s obviously impossible.

It’s time to go after the RINO’s from the grassroots and take counties and states and then grow so big a “Republican” would be a dinosaur.

It’s clear we can’t take the party from the top down. We’ve tried for 32 years and get jerks like Boehner and McConnell (and sometimes Speaker Newt in his day, and Bill Frist and Trent Lott) that keep stabbing us in the back over and over.

23 posted on 07/03/2012 4:22:04 PM PDT by Fledermaus (Democrats are dangerous and evil. Republicans are useless and useful idiots.)
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To: alstewartfan
Roberts should have borrowed a set of balls from Kagen if he needed them to stand up to the liberal bullies. He sold out the country so he could receive pats on the back from pedophiles and thieves. What a cheap whore.
24 posted on 07/03/2012 5:52:43 PM PDT by peeps36 (America is being destroyed by filthy traitors in the political establishment)
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To: x

Where is ‘judicial restraint’ mentioned in the Constitution?

25 posted on 07/03/2012 6:20:01 PM PDT by Ken H
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To: x

Right which is why I did not say that nor do I think it. There are many laws that have passed constitutional scrutiny that I do not like. Such is life.

But to my knowledge never has a tax bill originated in the office of the CJ of the SCOTUS. Nor should it have and the sophists who regard this as restraint are fooling nobody with a brain. And it does not even take much of a brain to see Roberts for what he is, a political animal with no regard for the US Constitution who has no business being on the SCOTUS.

BTW, I am not trying to convince anybody of anything, just stating the facts as I see them.

26 posted on 07/03/2012 6:29:48 PM PDT by jwalsh07 (.)
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To: x
Yeah? Well, let's see how they rule on the DOMA.

Supreme Court Asked to Intervene in Defense of Marriage Act Ruling

27 posted on 07/03/2012 6:31:55 PM PDT by Bratch
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To: jwalsh07

“ business being on the SCOTUS.”

Thats what impeachin’s for....

28 posted on 07/03/2012 6:37:46 PM PDT by mo (If you understand, no explanation is needed. If you don't understand, no explanation is possible.)
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The liberals are the A list and the conservatives are the B list. The liberals have put on their snobish airs for so long that many people have bought into their sense of superiority.

29 posted on 07/03/2012 8:43:18 PM PDT by cradle of freedom (Long live the Republic !)
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To: Fledermaus

Very astute.

30 posted on 07/03/2012 8:45:17 PM PDT by cradle of freedom (Long live the Republic !)
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To: nerdgirl

“Great article.”

Not really except where he finally discovered some of injustice Roberts many contradictions and just begins to understand the inherit problem with what he calls “institutionalism”.

Michael Gerson before that had it backwards in presuming that the ideological ratchet only goes one way because of Constitutionalism rather than institutionalism. If one of them is to allow ideology to go anyway it is institutionalism which on face value admits to “preserving” the institution by way of compromise with political forces(if the predominate force is leftist activism than your institution will do nothing but move left).

Constitutionalism sticks to the firm and anchored foundation of a written constitution, it sways nether left nor right, only back toward the point of anchor after being pulled.

Furthermore Constitutionalism does not necessarily include any kind of “humility” following a “period of liberal activism”.(When is there not liberal activism?) That is a trate of how people deal(or fail to deal) with the activism of others. Frankly I agree being humble with insane leftist ideas is flirting with deaster & enslavement.

31 posted on 07/04/2012 12:45:50 AM PDT by Monorprise
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To: Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; Art in Idaho; GregH; ...

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

32 posted on 07/05/2012 9:17:35 PM PDT by BuckeyeTexan (Man is not free unless government is limited. ~Ronald Reagan)
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