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    Funny how that new judicial restraint works

    Funny how that new judicial restraint works

    The self-delusion that yesterday’s affirmation of Obamacare’s mandate under the taxing power of Congress was a conservative victory continues in full force today.  (See links and quotes at HotAir and Instapundit)

    Judicial restraint now means ignoring the will of Congress as to the purposes and structure of legislation in order to save the legislation from Congress.

    That “restraint,” i.e., rewriting legislative history, terms and purposes in order to save it, was not used to salvage most of the Arizona immigration law.

    Funny how that works.


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    jimzinsocal | June 29, 2012 at 10:20 am

    Agree with Rags on the McCarthy piece. Also agree with the points about the Commerce Clause..that entire finding some positive in the loss. Glad to see Barnett’s argument was essentially accepted by the court.
    Meanwhile, the Democrats go home with the prom queen and were sitting in front of the tv with a bag of fries.

    Its what Republicans do now that’s important. Im not as interested in what may happen next time a Commerce Clause law is written and makes it to court.
    So its a tax now. Run with that and force legislation in Congress to both recapture the “mandate” as a Congressionally controled tax and force democrats to admit its a tax by voting yes….if they want to pass the legislation. Work with what we have right now.

    conservative not republican | June 29, 2012 at 10:22 am

    At times like this, the difference between the “Republican” media and the “conservative” media becomes painfully apparent. Pick out the biggest of “our” guys in the media and watch them spin as they try to placate the conservative base. Watch the websites that you thought were reliably conservative and note that they are leading with articles about how John Robert’s decision was a “victory.” soon they will be saying that the Court is at stake in the next election. Republicans have had a majority of Supreme Court Justices for over 50 years. The Republican party must be reformed.

    I’m looking for a shred of hope from this debacle, and found an article on by attorney Dov Fischer which helps a little.

    Professor, can you weigh in on his assessment? Here’s an excerpt:

    “There is now a formal United States Supreme Court opinion on the books, overdue by nearly a century, holding that the federal government may not wield the Commerce Clause to impose on American citizens the obligation to buy health insurance or anything else we do not want. An American cannot be compelled by federal mandate to eat or even to buy a proverbial stalk of broccoli. As a kosher consumer, the federal government cannot wield that clause to impose on me an obligation to purchase non-kosher food supplements. The rules guiding lower-court wrestling matches over federal power to invade Americans’ private lives now have been reset remarkably by Chief Justice Roberts. Few today notice what he has done. Long after many of us are gone, this 5-4 opinion finally setting limits on the reach of the Commerce Clause will continue to affect American lives and protect private citizens from Washington’s intrusions.

    It is understandable that most Americans, who are not law school graduates, do not think in these terms, nor do most pundits outside the legal community who interpret news. However, attorneys and certainly law professors get it. We know what happened on Thursday. It was subtle and below the radar, like a tsunami beginning in the middle of an ocean, still days away from the shore. Only the trained insiders know what that rumbling will cause in the future. This was a tsunami, finally giving us our first Supreme Court precedential holding in nearly a century that reins in the federal government’s unbridled abuse of the Constitution’s Commerce Clause. And the liberals, excited as they understandably are by the temporary survival of ObamaCare, do not even realize what has happened to a pillar of their enterprise. And that is fine.

    Secondly, Chief Justice Roberts has punted the whole ninety yards, so to speak, with the expertise of a professional football kicker whose team has the ball on its own 8-yard-line, then punts ninety yards, pinning the other team on their own two-yard-line. Had Chief Justice Roberts sided completely with his four conservative colleagues, Obamacare now would be off the political table for the November elections.”

    Read more:

      MaggotAtBroadAndWall in reply to ETPaws. | June 29, 2012 at 12:07 pm

      He’s another in a long list of people on “our side” who is polishing a turd.

      It is sad watching “conservatives”, many of whom are esteemed syndicated columnists, spin this as a win. The win would have been striking down the entire law, which is exactly what the four justices in the dissenting opinion were correctly prepared to do.

      Roberts sacrificed his conservative principles. Only he knows why. But I tend to agree with Artur Davis who speculated that the full frontal assault on him by lefty pundits since the oral arguments may have had something to do with it. They essentially promised him that they would do everything in their power to destroy his historical legacy if he did not rule their way.

      If it’s true that he buckled under pressure, then that’s even sadder than reading the “conservative” pundits who want us to pretend that this is a win for conservativism.

      gs in reply to ETPaws. | June 29, 2012 at 12:18 pm

      Some conservative pundits would have me believe that Roberts is like a chess grandmaster whose devastating move looks suicidal to naive observers. I will acknowledge Roberts’ brilliance if the promised positive consequences ever happen. Until that time, I’m keeping it simple:

      Losing is worse than winning.

    2nd Ammendment Mother | June 29, 2012 at 11:34 am

    IMHO, the American people have lost far more than a single opinion. The rule of law no longer exists. We now have the precedent for the laws to be passed outside of an established and a court that will re-write that law to change it’s meaning. If Roberts intent was to preserve the reputation of the court, then he did so at the cost of it’s soul.

    CalMark | June 29, 2012 at 11:38 am

    What kind of hope is there, except for the bogus kind Obama peddles?

    Conservatives are almost one-half of the country, by a significant margin the largest ideological bloc. I cannot recall a single instance in human history where such a large, strong, popular movement has been so powerless.

    Betrayers unexpectedly appear in our own midst at every crucial juncture, turning our victories into defeats.

    We have just about run out of options. We keep winning, but we keep losing.

    Is there a God? And if He exists, is He “just” as conservatives perceive the word–or have the “religious leftists” been right all along about Him? Perhaps it’s heresy, but I cannot help but wonder, given a seemingly just cause that is so routinely beset and defeated by lies, brutality, and treachery.

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