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Posted by on Jun 30, 2012 in Economy, Health, Law, Politics | 4 comments

What Roberts Achieved

What Roberts achieved

…The most important function of the federal courts is to legitimate state building by the political branches. That is the best way to understand what happened in the Health Care Case. It also helps explain why Chief Justice John Roberts’ opinion is written the way it is. …The Atlantic

Legal scholar Jack Balkin parses the chief justice’s decision and decides that Roberts a) left the social contract in place while b) making it more conservative. He has told Congress: “You may compel people to enter into commercial transactions like the insurance mandate, but you may not do so as a direct order under the commerce power. Instead, you must do it through the taxing power, always giving people the choice to pay a tax instead. And as long as you structure the mandate as a tax, the people’s rights are protected because they always have the right to throw their elected representatives out of office if they don’t like the tax.”

In other words, no taxation without representation.

And Medicaid?

He [Roberts] argued that Congress may create new social programs that expand protection for the poor. But Congress may not tell states that they must accept the new programs or else lose all federal contributions to existing social programs of long standing. The federal government may, if it wants, totally fund the Medicaid extension out of its own pocket without any help from the states. It may abolish the old version of Medicaid and create a new version in its place identical to the expanded version. What it may not do, Roberts argued, is to leverage States’ dependence on federal money in established social welfare programs to compel States to participate in new social welfare programs. …The Atlantic

In a way, you could look at Roberts’ decision as acknowledging the Supreme Court as partner, not adversary, of the Executive and the Legislative branches.

Some have called Roberts’ opinion statesmanlike, putting aside personal ideology to apply the law. Others have called it clever, handing conservatives an ideological victory while giving Democrats a policy result they like. My own view is that the Court as a whole performed the traditional function of federal judges in our constitutional system. The political branches sought to build out the American state and change the terms of the American social contract. The Court legitimated this result, but set new ground rules for politics going forward. …The Atlantic

We know what will happen if the Supreme Court — with a Republican in the White House and Republican domination of at least half of Congress — turns more conservative. As Balkin says, they will “remake the Constitution in their own image.” But what happens if the Democrats win?

If the Democrats continue to hold the presidency, the Supreme Court may regain a liberal majority for the first time since the late 1960s, and the Constitution will look appreciably different. But whoever wins, health care reform is here to stay. The social contract in America has forever changed. That is the lasting legacy of President Obama’s efforts, and the lasting legacy of the Supreme Court’s decision. …The Atlantic

In other words, the Constitutional scholar we chose as president has achieved the first steps on the way to universal health care. Characteristically, he has also managed to bind conservatives into a contract — America’s and democracy’s original social contract that radicals on the right have been so eager to kill.

Smart president. Maybe even a smart Supreme Court justice, though I’d have to admit I saw parts of his decision (as much as I know of it so far) as naive or even childish.


If you’re hungry for more views of the decision, try Jack Balkin’s blog, Balkinization.


Also interesting is James Fallows’ column with an analysis of why Roberts chose to vote the way he did.


Michael Savage? Well, I’ve only heard Michael Savage once and was genuinely surprised he was on the air. He seems like a psycho. But he has his opinion about Roberts. From Think Progress:

Let’s talk about Roberts. I’m going to tell you something that you’re not going to hear anywhere else, that you must pay attention to. It’s well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts’ writings you can see the cognitive dissociation in what he is saying.

Maybe that’s what’s behind what I saw as a kind of childishness.

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