Many on the right continue to be furious at Chief Justice John Roberts. They propose many theories for why the Chief Justice “betrayed” them. We think the Chief Justice gave Republicans/conservatives several long term constitutional gifts as well as very important and immediate political riches. But the attacks on the Chief Justice persist. We think there are some very plausible explanations for why the Chief Justice did what he did and the word “brilliant” is part of the answer.
Was Chief Justice John Roberts Blackmailed By Barack Obama On HellCare Because He’s Gay? When John Roberts was nominated we remember behind the scenes attempts to destroy Roberts and the subsequent public attempts to block his nomination by sniffing his briefs and perfuming Roberts with lavender scents:
“Ever since President Bush announced his selection of Judge John G. Roberts, Jr., as his Supreme Court nominee, speculation over whether Judge Roberts might be gay has run rampant throughout the blogosphere. See, e.g., Althouse, Law Dork, and Wonkette. UTR readers have also flooded A3G’s inbox with emails citing the following “evidence” that Judge Roberts is gay:
1. Despite being handsome, brilliant, rich, and nice — in other words, prime marriage material — Judge Roberts didn’t get married until the relatively late age of 41.
2. With all due respect to the perfectly attractive Mrs. Jane Sullivan Roberts, some UTR readers — not A3G — have commented that the #5 Superhottie of the Federal Judiciary could have “married someone hotter.” According to a UTR correspondent who used to work at Hogan & Hartson, Judge Roberts’s former law firm, “many of the older [Hogan] attys are married to good-looking 20-somethings after having dumped their first wives.”
3. Judge and Mrs. Roberts have adopted rather than biological children. (The “theory” behind this fact, it seems, is that we therefore have no “proof” of the consummation of the Roberts’ marriage.)
4. Judge Roberts has associated with gay people in the past:
(a) As everyone knows by now, he did pro bono work on behalf of gay rights activists, helping out colleagues in their preparation of court filings and oral argument in Romer v. Evans, 517 U.S. 620 (1996).
(c) One UTR reader commented that “Roberts has had at least one gay (male) clerk while sitting on the D.C. Cir. I suspect at least one other clerk as well.”
So there’s certainly some grist for the “Judge Roberts is gay” rumor mill in the nominee’s past (even if much of it is of dubious value). And now, tomorrow’s edition of New York Times will throw more fuel on the fire, in the form of this rather interesting article about Judge Roberts’s time at Harvard and what it was like to be a campus conservative there during the 1970’s.
There are two noteworthy aspects of this article from the “John Roberts Is Gay” point of view. First, check out the provocative third paragraph — surprisingly high placement, essentially part of the lede — of Janny Scott’s piece:
“Conservatives were like the queers on campus,” said Eric Rofes, a classmate of Judge Roberts who later became an organizer on gay issues. “People made fun of them. They mocked them and saw them as jokers or losers. I don’t think in the moment many people realized this was the start of an ascending movement. People felt it was like the last cry of the 1950’s.”
Second, directly to the left of the foregoing paragraph in the online version of the article is a photograph (courtesy Don Scherer) showing Judge Roberts hanging out on Martha’s Vineyard with two handsome male friends, Don Scherer and Richard Lazarus. Call Article Three Groupie crazy — you wouldn’t be the first — but the picture strikes her as pretty “gay-looking.”
“John Roberts is gay! Look at those smiling buff friends snuggled next to the next Supreme Court Justice on Martha’s Vinyard displaying the groumet meal they just made, and THEY will tell you. Now let’s hope Roberts is actually confirmed before he’s outed like a certain New Jersey Governor! Some legacy for Christian hero W. — seating the first GAY Supreme Court Justice!* This is SO GREAT!
The hope for change at the Supreme Court from some “leaders” of the left always had the barely submerged notion that Roberts could be forced out if the truth ever came out. Is anyone surprised that in big time politics such slime and smear is contemplated by those that publicly purport to be “gay friendly” liberals?
Professor Althouse, at the time made the case that the New York Times sought to portray John Roberts as a gay man. The Times will editorialize about gay rights but if necessary even the very gay staff at the Times will gay-bait.
Is there any doubt that Barack Obama would gay-bait to save himself? Anyone with doubts about narcissist Obama trashing those who stand in his way were also likely surprised by the latest Tom Cruise divorce. In the past Barack Obama has gay-bashed in order to save his political skin. In order to save himself now Barack Obama would trash the Chief Justice on being gay whether or not it is true.
We certainly hope that no one is so naive as to think that if the Obama health scam had been struck down by the Supreme Court that Obama’s henchmen would restrict themselves to arcane and barely understood Constitutional arguments about the Commerce Clause, the Necessary and Proper Clause or the Tax Power. Obama’s political history is one we have discussed many times before and it is ugly. The go to sources for Barack Obama’s campaigns are always the trash dumpster of sex, scandal, innuendo, and planted stories.
The trash dumpster, including adoption records, was about to be dumped on Chief Justice Roberts head. Whatever had to be done would be done.
Obama was in a lose/lose situation. The priority for Obama, as usual, was himself. Obama did not want to suffer a personal loss even if he took whatever is left of the Dimocratic Party with him on his “victory”.
Obama did understand that a “victory” in the high court would provide more propulsive power to the opposition. But Obama also knew that despite all the brave talk from his campaign a ruling of “unconstitutional” would have finished off his presidency and ruined him personally as a loser.
This does not mean that Obama would have gone quietly into the darkness if the Supreme Court red-stamped “unconstitutional” on the health scam. The Barack Obama henchmen would have gone nuclear against the Supreme Court.
Why would Obama go nuclear even if he lost everything in a ruling throwing out ObamaCare? Perhaps firebombing Roberts and the court might might might salvage his miniscule reelection chances. Perhaps by nuking the court and Roberts vengeance would be served. The left would join Obama in the destruction of Roberts and the court at least in fear of what Roberts has planned for the next term of the court.
As head of the Judicial Branch of the tripartite government John Roberts had his own calculations to make.
John Roberts could simply have led the court in a 5-4 majority striking down the Obamination root, trunk, and branches. The Commerce Clause, the Necessary and Proper Clause would both be eviscerated and the tax power ruled not germane. After such a wonderful ruling Roberts would then have to hunker down and prepare for attacks on himself personally and the Supreme Court institutionally.
A 5-4 ruling against ObamaCare could be followed by more 5-4 rulings to complete the Roberts agenda (described in Part I). But that would come at a great price politically. And what would happen if Obama won reelection by a sustained attack on the court in a fear and smear campaign?
Now, some label Roberts a “coward” for not going forward with a succession of mighty blows against the empire of liberal jurisprudence and legislation. Some charge Roberts is dishonest with an even more intellectually dishonest opinion written to twist history and find a way to declare the Obamination constitutional. Roberts is damned for not storming the barricades and leading the charge. Roberts is [falsely] hated for augmenting the Tax Power. And how dare he look at politics when his role is supposed to only be on the law and the law only, charge his critics.
Rubbish. Let’s look at what happened. Roberts found a better way. How do we know? Recent leaks from the Supreme Court, hostile to Roberts, actually impress us with Roberts’ ability to make some really good lemonade for conservatives.
Republicans/conservatives have been particularly incensed that Roberts wrote the majority opinion with the conservatives then at the last minute “switched” sides. Ladies and gentlemen, it’s called “bargaining”. It’s what Supreme Court justices do. Roberts wanted to destroy ObamaCare but he also wanted to preserve the integrity of the court in the public’s eyes. But how to get liberals and conservatives of the court on the same page? How to get sharply divided liberals and conservatives to vote 6-3 or 7-2 on the outcome? Roberts came up with a daring, dare we say “brilliant” plan:
“Five justices saw the Medicaid expansion as either constitutional as written (Ruth Bader Ginsburg and Sonia Sotomayor) or salvageable by making it voluntary on the part of the states (Kagan, Roberts and Breyer).
Lawyers who track the court closely say it’s unclear exactly what the outcome would have been if Kagan had voted with Ginsburg and Sotomayor. It’s possible those three might have been able to drive the result, rendering the Medicaid part of the law entirely constitutional. However, if Roberts (or Breyer) was unwilling to endorse such a result, he could have crossed over and voted with the dissenters to make a five-vote majority to strike down the expansion entirely and maybe even the whole law. [snip]
Fourth, and related to the above, Kagan’s vote may have been a strategic concession to save the whole law and/or the Medicaid expansion, rather than see it all struck down. Very possible, though I doubt she’d admit it at the moment.
Some liberals and conservatives believe Kagan signed onto the Roberts-Breyer Medicaid position to avoid a defection by Roberts (or, less likely, Breyer) that could have struck down the Medicaid expansion entirely. [snip]
“That was kind of a compromise that saved ‘Obamacare,‘” Fitton said of Kagan’s vote on Medicaid. “One easily could have found that you could not craft a legislative remedy from the bench. …They could have thrown out all of Obamacare.”
“That would be quite a horse trade if Kagan and Roberts did that secretly,” said Outterson, when asked what he thought of the theory.”
May we remind everyone that Kagan was Obama’s Solicitor General. Roberts managed to get Kagan to vote against Obama on the Medicaid expansion in order to “save” ObamaCare”. Roberts managed to get a 7-2 vote:
“Kagan voted for portions of Chief Justice John Roberts’s controlling opinion declaring unconstitutional a major provision in President Barack Obama’s health care law, namely the Medicaid expansion.
While Roberts has been denounced by conservatives as an ideological heretic and turncoat for siding with liberals to uphold the individual mandate in the law, Kagan’s conclusion that the law’s Medicaid expansion was unconstitutionally coercive toward the states has triggered no similar wave of condemnation of her by liberals.
The absence of public outrage toward Kagan is particularly notable since she wasn’t parting company just with her liberal ideological counterparts, but with the president who appointed her to the court and with the administration she served as Solicitor General immediately prior to taking the bench.
“Who knew that the Solicitor General thought the Medicaid expansion was unconstitutional?” said Kevin Outterson, a law professor at Boston University who filed an amicus brief urging the court to preserve the Medicaid provisions as written.
Asked how likely he thought it was prior to Thursday’s ruling that Kagan would wind up taking such a stance, Outterson said: “Never in my wildest nightmares.”
Chief Justice John Roberts managed to acquire a 7-2 majority opinion against Medicaid expansion and the vote of an Obama appointee/ former Obama Solicitor General and there are calls from Republicans/conservatives to impeach him???
Let’s tote the score so far. On the Commerce Clause Roberts gets his way whether ObamaCare is constitutional or unconstitutional. Ditto on the Necessary and Proper Clause (which was the ultimate “trump” card as far as leftist legal commentators). Medicaid expansion crippled although an unconstitutional ruling would have removed it altogether and immediately. But do not doubt that Medicaid expansion is a central component of ObamaCare and without it the entire scheme falls.
Meanwhile, as John Roberts well knows, the battle over the Obama monstrosity is not yet over in the courts or the high court:
“More legal challenges to ACA on way
The Supreme Court lawsuit isn’t the end of the legal challenges to the health care law — and the next ones just might help Republicans keep pushing their favorite political hot buttons.
The next wave of lawsuits likely wouldn’t put the whole law at stake, as the challenge to the individual mandate could have. But they’re going after pieces of the law that happen to be red meat for many conservative voters — like the law’s contraception mandate and a new Medicare panel that Republicans call a “rationing board.”
And one possible legal challenge, which would try to block the feds from offering subsidies in a federal health insurance exchange, is meant to exploit a loophole in the law. But it could also be a good “messaging hit” — allowing them to attack the subsidies they see as a budget-busting new entitlement. [snip]
“These legal actions could be used as PR initiatives to show the massive overreach of Obamacare,” he said. “In certain places, it could move independents to a varying degree.”
The suits could get additional attention as they move toward the oral argument stages — if they make it that far. And they’ll help the Republicans keep up the broader narrative they hope to push in November: The law has so many problems that it deserves an all-out assault.
“It presents the picture that this law has a lot of problems with it and has to be adapted and changed,” said Republican strategist John Feehery. “This law isn’t getting any more popular.”
The contraception requirement which pits Obama regulators against the Catholic Church (urging civil disobedience) is a 23 state series of lawsuits already in the courts. These cases do not bode well for ObamaCare if Justice Ruth Bader Ginsburg’s opinion on the individual mandate is any clue:
“Other provisions of the Constitution also check congressional overreaching,” Ginsburg wrote. “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion or infringed on a liberty interest protected by the Due Process Clause.”
The “Exchange subsidies” are also going to be under attack. “Opponents of the law say that the administration can’t open the federal exchanges to tax subsidies through the regulatory process if it wasn’t in the law in the first place.” It’s a complex case[s] but sure to affect businesses until the entire law is repealed.
The Independent Payment Advisory Board is also under legal assault. This is the “rationing” board on Medicare that we have railed against for years. Physician-owned hospitals are in the 5th Circuit Court of Appeals challenging ObamaCare. This is the Appeals panel that demanded the attorney general write to them and acknowledge that the courts do indeed rule on the constitutionality of laws after Obama demanded the Court uphold his “duly passed” law. The ban on “physician-owned hospitals participating in Medicare violates the doctors’ equal protection rights” say the plaintiffs. This is another case that is complex but the ramifications on the ObamaCare scheme are deadly.
Chief Justice John Roberts knew the legal fight would continue. But even smarter smarts from Roberts was that by effectively destroying the Medicaid expansion on a 7-2 vote means the states now come into play. A majority of states won’t ObamaCare:
“The Republican governors’ message was clear on a morning Republican National Committee conference call, when Jindal and McDonnell stressed their continued defiance of the Affordable Care Act and said they will resist implementing the state-based health insurance exchanges for which the law calls.
“Here in Louisiana, look, we refused to set up the exchange. We’re not going to start implementing Obamacare,” Jindal said. “We have not applied for the grants, we have not accepted many of these dollars, we are not implementing the exchanges, we don’t think it makes any sense to implement Obamacare in Louisiana.”
The response from GOP governors was similar elsewhere.”
On the afternoon of the Obama HellCare decision we wrote of the Roberts decision: “This Roberts decision reminds us of the brilliant Marbury decision which cemented judicial review.” Our comment came as Slate published an article which did not mention Marbury, as we did, but which saw the brilliance behind the decision and declared that Republicans/conservatives will one day cheer:
“Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.”
Subsequently others noticed the Marbury quality of the decision and the hand of a Chief Justice like John Marshall. Writers from the center right/right that we respect saw what we did and were impressed with Chief Justice John Roberts’ ability to have his cake and eat it too.
“The Case for John Roberts
Many conservatives are feeling betrayed by the chief justice’s vote to uphold Obamacare. But there’s a counterintuitive case to be made that John Roberts’s decision is largely a victory for conservatives. [snip]
It’s worth remembering that there are so many people who will be made worse off by the bill – seniors who lose their Medicare Advantage, employees who get dropped from their employers’ plans, families who will see their premiums increase, businesses that have to endure the employer mandate, the taxpayers who have to foot the bill for the whole thing – that it is far from difficult to forge a broad political coalition to kill off the bill. [snip]
By explicitly and unequivocally limiting the scope of the Commerce Clause as well as the feds’ ability to coerce the states, he has done major damage to the century-long leftist project to do away with constitutionally limited government.
Not only that, Roberts has forced the advocates of big government to grin and bear it! He gave Obama and the liberals a nominal victory while undercutting their long-term agenda, which reminds me of Marbury v. Madison. Yes, Chief Justice John Marshall sided with President Thomas Jefferson on the narrow specifics of that case, but he also dealt the Jeffersonian view of the Court a fatal blow. And more importantly, Marshall’s political craftiness set the stage for further Federalist victories, despite the political power of the Jeffersonians at the ballot box. Without Marbury v. Madison, there would have been no McCullough v. Maryland, no Fletcher v. Peck, no Gibbons v. Ogden.
Roberts has perhaps accomplished something similar here. This country is hopelessly split along ideological lines, and it seems impossible for either side to gain any lasting advantage over the other. But maybe Roberts has managed to do precisely that. By nominally endorsing an overwhelmingly unpopular bill that is in major trouble anyway, he has created the political space needed to strike directly at the heart of liberal legal theory without inflaming the Democrats [snip].
Well, just maybe Chief Justice John Roberts showed the way yesterday. It’s all about taking opportunities as they present themselves, not over-reaching, and playing the long game. Just as Marshall advanced the Federalist agenda by forcing Jefferson to endorse a decision that was inimical to his long-term interests, maybe Roberts just did the same thing to Barack Obama and the liberal Democrats.
And while he did not eliminate Obamacare for us, isn’t it fair of him to ask why we can’t do that for ourselves, in November? He’s given us a huge constitutional victory, why can’t we respond with an equally large electoral victory in five months? It is unreasonable to expect the Court to solve all our problems, isn’t it?
Jay Cost followed up with a second smart piece on the hated Obamination, “Don’t Bet on Obamacare”:
“If Republicans win in November, Obamacare is finished. Surely, our sophist in chief knows that.
But even if President Obama manages to squeak out a victory in four months, the debate over Obamacare will not be over. In fact, I believe that Obamacare in its current form is doomed, regardless of who emerges victorious on November 6.
I have two reasons for this conclusion.
First, the bill is built on far too many questionable assumptions. If any one of them fails to hold, the entire thing could fall apart. [snip]
Second, the bill is nothing like Social Security and Medicare, which seem to be the political template the Democrats believed they followed. The political genius of these programs was that they were designed to benefit everybody. Indeed, this is why FDR stuck with a social insurance model for Social Security, despite the fact that its design was clunky. He understood, correctly, that it would inoculate the program from future political blowback.”
The equally smart Sean Trende also hears mystic chords of Marbury played by John Roberts:
“The Chief Justice’s Gambit
In 1803, the chief justice of the United States had a problem. His hated cousin, Thomas Jefferson, had won the last presidential election. But the outgoing Federalists opted not to go gentle into that good night. The one branch of government they controlled was the judiciary, and they meant to keep it. They had passed the Judiciary Act of 1801, which allowed for several new judicial appointments.
President Adams did a remarkable job filling the appointments and getting them hastily confirmed. The so-called “Midnight Judges” by and large received their commissions. But not all of them did. Incoming President Jefferson then instructed his secretary of state not to deliver the remaining ones.
Unsurprisingly, litigation ensued. One of those who was to receive a commission, William Marbury, filed a petition directly in the Supreme Court under a provision of the Judiciary Act of 1789. He requested a writ ordering the secretary of state to deliver his commission.
But Chief Justice John Marshall was a staunch Federalist. The republic was young, the court’s legitimacy fragile, and the ability of the nation to endure the peaceful transfer of power between parties uncertain. It was also unclear how Marshall’s ordering the newly installed Jeffersonian Republican secretary of state to do something would go over.
So the chief justice did something very clever. He found that Marbury was entitled to his commission, bestowing legitimacy on those Midnight Judges who had received theirs. But he didn’t stop there — to Marbury’s detriment. He then ruled that the Constitution only gave the court so-called “original jurisdiction” over a small number of cases. The provision of the Judiciary Act of 1789 bestowing the court with original jurisdiction over writs of the type Marbury sought was therefore unconstitutional.
Jefferson had won, nominally. Madison didn’t have to deliver the commission, Marbury didn’t refile in the lower courts, and he never became a justice of the peace. But history remembers the case as a huge, perhaps decisive, blow against those Jeffersonians who viewed the Constitution as nothing more than a glorified Articles of Confederation.
In depriving the court of original jurisdiction, Marshall had installed the Supreme Court as the ultimate arbiter of the constitutionality of laws. Jefferson hated the idea of what has become known as judicial review. But having won, he was powerless to act against Marshall. Over the course of his term, Marshall would use that power to increase vastly the powers of the federal government, and to diminish those of the states.”
Many Americans assume that the Supreme Court always ruled on the constitutionality of laws passed by congress. But that is not so. It was not always thus. It was John Marshall who wrote the decision in 1803 that established judicial review. It was John Marshall that placed the Supreme Court in the important position it is today. It was John Marshall in the Marbury decision that made the Supreme Court the court we know today.
Trende is too polite to say it but we will as a public service: Marshall’s decision was a load of crap. In that too, he shares something with the crapola decision written by John Roberts. But that there is a huge degree of intellectual dishonesty and some lack of logic in the final outcome does not diminish the brilliance of neither Marshall nor Roberts. The Chief Justice of the Supreme Court will always have to swim and live in political waters and it is somewhat churlish to notice when the Chief Justice is all wet.
Trende was surprised by the ruling, as we were, but not shocked:
“But I think if you scratch the surface here, Roberts embarked upon a gambit much like Marshall did 200 years ago. [snip]
But Roberts is only a few years further into his chief justice-ship than Marshall was at the time of the Marbury decision. His tenure is likely to be equally as lengthy, if not more so. I think the forest for him is quite a bit different than the trees that people are focusing on. Consider:
1. The law still has a good chance of not being implemented.
If Mitt Romney wins the November election, it is highly likely that Republicans will win the Senate as well. Right now, Romney probably has no worse than a 50-50 chance of being elected. I honestly don’t think in the long run this changes things that much. The next jobs report will have a much greater impact on Obama’s re-election bid over the long haul than this decision.
If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it. In fact, since the court essentially allowed states to opt out of the Medicaid expansion, there’s a chance that the bill would no longer reduce the deficit if a large state like Texas opted out. This makes the use of reconciliation much easier.”
Well we now know the results of today jobs report: More people went on disability than got jobs in June.
Like us, Trende proposes that this is a substantial victory for Republicans/conservatives:
“Doctrinally, The Federalist Society got everything it wanted.
But judicial conservatives who are not just concerned about the outcome got more than they could have reasonably hoped for. Doctrinally speaking, this case will likely be remembered as a watershed decision for conservatives.
Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers. Right now, liberals are seemingly too busy celebrating their win, and conservatives bemoaning their loss, to realize the significance of this. [snip]
The most important aspect of the ruling, however, comes with respect to the spending clause. Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. [snip]
3. The chief justice has built up some political capital.
Barack Obama was forced to go on television and praise the court’s ruling. In so doing, he validated — at least implicitly — one of the most pro-state’s rights decisions in recent times.
Roberts has basically done what John Marshall did…. [snip]
4. This matters in the long run — a lot.
This is not the last battle to be fought on the Roberts Court. It might not even be the most significant. In the next term, for example, the court is being asked to reconsider its affirmative action jurisprudence. There are almost certainly five votes to overturn court rulings from a decade ago upholding some forms of affirmative action.
Following that, the court will face a variety of tough decisions. There are probably five votes to uproot the entire campaign finance system, a decision that would make Citizens United look like small fry. And there are probably five votes to invalidate Section 5 of the Voting Rights Act. [snip]
But Roberts has something of an ace up his sleeve now. Accusations of hyper-partisanship are much harder to make against him, and he has more freedom to move on these issues.” [snip]
In so doing, he actually made significant progress for judicial conservatives while ruling against conservative policy. And he might still see that policy repealed if Republicans win in the fall.”
In a few years, possibly a very few months or weeks Chief Justice John Roberts will be seen to have written a very brilliant decision. No trash dumpster can hurt him now. He can fulfill the items on his agenda for the next several decades. Meanwhile, he has given Republicans/conservatives a mighty arsenal with which to fight the battle.
Part III soon: The Return Of “Tax And Spend Liberal”.