Saturday, June 30, 2012

Frum on Roberts v Scalia

The other day I speculated about how the SCOTUS ruling on health care reform may have vindicated President Obama's strategy as much as his policy.

Yesterday, David Frum posted a rather lengthy comment from a reader who clerked on an appellate court saying basically the same thing.

For some background, one of the main things the Court had to decide, if they were to find the mandate unconstitutional, was whether or not it could be "severed" from the rest of the law.

What we know from the 4 dissenters on this ruling (Scalia, Thomas, Kennedy and Alito) is that they were not willing to consider severability. They simply wanted the entire bill tossed out.

Frum's reader suggests that was a bridge too far for Roberts.
The following is speculation, but plausible, and would be an interesting parallel to the conservative legislative strategy. Any objective legal observer would tell you (and I'm trying to be one here) that the dissent's treatment of the severability issue is detached from 200 years of constitutional law. It's unsupported legally and it's a mess logically... In any event, rather than holding the mandate [un]constitutional and those portions of the bill inextricably linked with it (guaranteed issue/community rating), four members of the Court were primed to throw the whole bill out. That level of judicial activism, in a context like this one, would be nearly unprecedented.

I imagine the dissenters either had Roberts's vote or that Roberts left the post argument conference without commiting to a side and saying something to the effect of "let me see how it writes."... And he waited to see what was written.

What was written was not measured judicial analysis, but rather an opinion that started with a goal --- throw the bill out --- and then figured out how to get there, blowing by any precedent in its path...

That dissent intended to get his vote. It might have had it only struck a portion of the law. But Roberts correctly realized that he couldn't jump off that cliff without precedent or logic supporting him. Kennedy, Alito, Scalia, and Thomas went all in. And they lost their bet. Just like the conservatives in Congress.
In other words, the 4 dissenters took the same "total obstruction" strategy that we've seen from Republicans in Congress over and over.

Its no surprise that a conservative like Frum would recognize this as a failed strategy by the conservatives on the Court. It is exactly the same argument he made following passage of the health care bill that got him ejected from the Republican establishment.
A huge part of the blame for today’s disaster attaches to conservatives and Republicans ourselves.

At the beginning of this process we made a strategic decision:...No negotiations, no compromise, nothing. We were going for all the marbles. This would be Obama’s Waterloo – just as healthcare was Clinton’s in 1994...

This time, when we went for all the marbles, we ended with none...

We followed the most radical voices in the party and the movement, and they led us to abject and irreversible defeat.
So if Frum's reader is right (and I suspect s/he is), Chief Justice Roberts just joined the few people on the right who have rejected the idea of total obstruction all the time, while justices like Scalia run ever faster off an extremist cliff.

Asking Republicans to make that choice is part of the long game President Obama is engaging. Score a win for him on this one!


  1. Wow...thank you for this. I so appreciate how you take the time to study these issues and distill it for those of us w/o the knowledge or time. This makes so much sense.

  2. Make no mistake, Roberts is not an ally of Obama, Democrats or the left. But he, at least, shows signs of still being a "sane" Conservative who understands that a blind devotion to ideology is a guaranteed path to destruction. He'll go to some serious extremes (see Citizens United), but no further.

    He is an ally of sanity.

  3. Follow the republican path of "all or nothing", and you will end up with nothing. A rational person realizes that they cannot get it all. An irrational person demands that they get it all.

  4. I think the key phrase was "blowing by any precedent..." One of the things that I've learned from following the birther idiots, is that precedent really is a cornerstone of judicial practice, and the law in general. The term often used is stare decisis or "already decided." The longer phrase it comes from is "don't disturb that which should be left undisturbed."

    By going against a whole set of established precedents, that would have meant a complete "wild west" of court decisions and incredible uncertainty. So Roberts may have looked at that and, along with other factors, thought "not going to go there."

  5. This is terrific. I reposted it, with links to you, over at Progressive Eruptions. I keep telling people in other posts about how crazy moderate Republicans say the GOP has become, and the conservatives who come to my blog keep ignoring it or dismissing it as "just opinion."


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