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Author: salaryguru Big gold star, 5000 posts Top Recommended Fools Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: of 60066  
Subject: Health Care & the Supremes Date: 6/30/2012 7:44 PM
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I was busy traveling when the Supremes ruled on the Affordable Health Care Act and didn't get a chance to read or post anything. So I thought I would comment now.

I was a little surprised, not so much be the decision, but by Roberts instead of Kennedy being the rational voice from the right. What surprised me even more is that a lot of what Roberts wrote is consistent with what I've been saying about the Individual Mandate. The commerce clause is a tough argument to win since you can claim that virtually everything is covered by the commerce clause or you can claim that virtually nothing is covered by the commerce clause and nobody can really prove either position. On the other hand, arguing that the only thing wrong with the law is paying for the program with an individual mandate is absolutely silly. How do you argue that forcing people to pay a tax that will provide a regulated service is not a violation of rights but forcing people to pay directly for the same regulated service is a violation? The only reason this silly position got this far is because the right wing echo chamber has spent so much time and money trying to make it sound reasonable.

My other observation is optimistic. Supreme court justices are about the closest thing to paid pure philosophical thinkers that we have in this society. Once appointed, their job is to contemplate how each law presented to them is or is not consistent with the principles the Nation is based on. They are paid to bring wisdom to our legislative/executive efforts. What we've seen over the years, at least since the 1960's, are that once justices are in a position to contemplate legal principles, they often find more wisdom in liberal thought than they did prior to taking this position. We have seen many Supreme Court justices who were appointed by Republicans shock that party as their decisions moved often to the left. By the 1980's the Republicans realized that what they needed to do was appoint justices who would never seek wisdom - justices so entrenched in their partisan faith that they would never think - justices like Clarence Thomas. He is surely safe from ever contemplating principles or fairness or becoming wise. Alito and Scalia seem similarly un-inclined to ever seek wisdom or legal principle as long as there is a partisan position to guide them. But finding such mental cretins is clearly difficult. Most people who have survived significant formal education are in danger of thinking and seeking principle based wisdom if given the opportunity and paid to do so.

Is this what we're seeing in Roberts?
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Author: intercst Big funky green star, 20000 posts Top Favorite Fools Top Recommended Fools Feste Award Nominee! Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 43838 of 60066
Subject: Re: Health Care & the Supremes Date: 6/30/2012 11:49 PM
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salaryguru writes,

My other observation is optimistic. Supreme court justices are about the closest thing to paid pure philosophical thinkers that we have in this society. Once appointed, their job is to contemplate how each law presented to them is or is not consistent with the principles the Nation is based on. They are paid to bring wisdom to our legislative/executive efforts. What we've seen over the years, at least since the 1960's, are that once justices are in a position to contemplate legal principles, they often find more wisdom in liberal thought than they did prior to taking this position. We have seen many Supreme Court justices who were appointed by Republicans shock that party as their decisions moved often to the left. By the 1980's the Republicans realized that what they needed to do was appoint justices who would never seek wisdom - justices so entrenched in their partisan faith that they would never think - justices like Clarence Thomas. He is surely safe from ever contemplating principles or fairness or becoming wise. Alito and Scalia seem similarly un-inclined to ever seek wisdom or legal principle as long as there is a partisan position to guide them. But finding such mental cretins is clearly difficult. Most people who have survived significant formal education are in danger of thinking and seeking principle based wisdom if given the opportunity and paid to do so.

Is this what we're seeing in Roberts?

</snip>


I hope so. But more likely Roberts realized that a third partisan decision decided 5 to 4 after Bush v. Gore and Citizens United would have cost the GOP-dominated court any semblance of credibility. Also, even while affirming Obamacare, Roberts' opinion puts limits on the strength of the Commerce Clause that could be used to attack the EPA and consumer protection laws in future suits.

The conservative cause may have won as much as they lost in this case.

intercst

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Author: salaryguru Big gold star, 5000 posts Top Recommended Fools Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 43844 of 60066
Subject: Re: Health Care & the Supremes Date: 7/1/2012 1:11 AM
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I hope so. But more likely Roberts realized that a third partisan decision decided 5 to 4 after Bush v. Gore and Citizens United would have cost the GOP-dominated court any semblance of credibility. Also, even while affirming Obamacare, Roberts' opinion puts limits on the strength of the Commerce Clause that could be used to attack the EPA and consumer protection laws in future suits.

The conservative cause may have won as much as they lost in this case.


I read lots of analysis - especially in the Wall Street Journal - that tried to make Robert's decision sound brilliant and very tactical, but I'm not sure I buy it. Even if Roberts was only deciding to avoid the court losing all credibility with the American voters, it still shows an awareness that we certainly see no signs of in morons like Thomas or Alito. I also read some analysis that speculated that Roberts needed to help Kennedy keep from being the swing vote in every vote or the conservatives might lose him. That seems really far fetched to me.

As far as his writings on the Commerce Clause, I always thought that was a lost cause. What the commerce clause actually protects is purely a matter of speculation. Anyone and everyone can claim it means whatever they like and no one can prove them wrong. The conservatives on this court will define it however they want whenever they want. Roberts really did nothing to define it in his decision. He simply said he didn't believe it applied to health care.

Roberts certainly didn't embrace the concept of the Affordable Health Care Bill as policy he believes in, and I don't think he is going to turn suddenly liberal . . . but this was a major win for Obama and for a large number of Americans. The conservatives lost far more than they gained from Roberts' comments. If prior to the decision you would have asked Republican Congressmen if they would think of it as a victory if the Supreme court ruling upheld Obamacare and the individual mandate but left the door open for states to challenge Medicaid and hinted at limits to the commerce clause, how many do you think would have claimed this decision as a victory?

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Author: SeattlePioneer Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 43848 of 60066
Subject: Re: Health Care & the Supremes Date: 7/1/2012 2:25 AM
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<<As far as his writings on the Commerce Clause, I always thought that was a lost cause. What the commerce clause actually protects is purely a matter of speculation. >>


It's really not a court at all in decisions like this. The Supreme "Court" functions as a classical oligarchy, or more precisely as an aristocracy.

They feel entitled to decide for every person or institution what their rights and responsibilities will be, and then dress that up with flowery language to disguise their ultimate control over political power.

And of course this is not new. Liberals and conservatives have been trading this power on the court since the inception of the constitution.

What you really have is a 200+ year campaign of the court gaining ever greater political power at the expense of states, Congress, the President and the American people.

Jackson and Lincoln grasped the thistle by ignoring the Supreme Court. Franklin Roosevelt made a noble but failed effort to punish the court.

In my opinion, the basic problem is that lifetime appointments gave too much independence to the judiciary, encouraging judicial license. This could easily be remedied by adopting a term of office for judges of twelve years or so, renewable if the Senate ratifies another term of office for judges.

The far greater lifespan and earlier age judges are appointed exaggerates these problems, as Presidents try to control the politics of judges and the court. Why not simply reduce their term of office and permit the turnover that would give reasonable amounts of independence but still give the Senate some control over outrageous judicial abuse of power?



Seattle Pioneer

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Author: FCorelli Big red star, 1000 posts Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 43852 of 60066
Subject: Re: Health Care & the Supremes Date: 7/1/2012 10:51 AM
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... cost the GOP-dominated court any semblance of credibility.


I've been seeing this referred to a lot. Could somebody explain it? So what? The court compromised "its credibility"? It's still the court and they're still the final word. If they rule "too partisan" a certain number of times we don't have to listen to them anymore? We already don't have to listen to them as they have no enforcement authority and Andy Jackson (and I suspect you can find some other examples) have already flipped them off, did what they wanted and no harm befell anyone, Including the court, and excepting some Indians.

Scalia's been giving us all the middle finger for years now. They're not elected. They have no code of conduct or rules of behavior, and no enforcement mechanism thereof. Seems like they start off with little credibility and would always be subject to second guessing

So what if this had been another 5-4 party-line vote against the public welfare. What are the other two branches gonna do about it?

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Author: SeattlePioneer Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 43855 of 60066
Subject: Re: Health Care & the Supremes Date: 7/1/2012 1:23 PM
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<<So what if this had been another 5-4 party-line vote against the public welfare. What are the other two branches gonna do about it? >>



The Congress could easily amend away the excessive independence of the courts which allows them to take on political functions. But that would require the cooperation of the left and right to do, something that hasn't happened in more than two centuries of judicial abuse of power.

Contrary to popular mythology, the main function of the court is not to protect political minorities, but to expand the power of political majorities that are entrenched enough to have a majority of the Supreme Court.

That allows the courts to do political things that even an entrenched majority in Congress wont touch.

The left and right take turns using judicial power to abuse the other. They could combine to prune back judicial abuse of power, but they never do.



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Author: SeattlePioneer Big funky green star, 20000 posts Top Favorite Fools Old School Fool Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: 43859 of 60066
Subject: Re: Health Care & the Supremes Date: 7/1/2012 4:14 PM
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Having failed completely with hate attacks on Supreme Court Justice Clarence Thomas, the chattering classes are trying to Love Bomb Chief Justice Roberts:

<<Chief Justice Roberts reaches for greatness>>


http://www.latimes.com/news/opinion/commentary/la-oe-amar-ro...


Personally I don't think attempts at flattery are going to do better than concerted hate campaigns.



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