More SCOTUS

"Rusty Vandura - www.tinyurl.com/keepoppo" (rustyvandura)
06/26/2015 at 14:34 • Filed to: None

I like this analysis about SCOTUS’s other big decision this week.

In a nutshell:

Justice Scalia: I don’t care what the ACA is trying to do, and I don’t agree with the ACA anyhow. They got one sentence wrong out of umpty-nine thousand pages, so I say, strike it down.

Chief Justice Roberts: The ACA is a big law that sets out to do some very specific things and Congress’s intent is clear. Just because they got one sentence wrong, oh well, and besides, letting this law stand will make things easier on Republican politicians in the long run.

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DISCUSSION (18)

Steve in Manhattan > Rusty Vandura - www.tinyurl.com/keepoppo
06/26/2015 at 14:44

Roberts is also trying to save his party, and conservatism, from itself. If they managed to take health insurance away from a few hundred thousand people, the GOP would have circled the drain even more quickly than it is. And Roberts legacy would have been destroyed. There is some of that.

jariten1781 > Rusty Vandura - www.tinyurl.com/keepoppo
06/26/2015 at 15:06

Nah, Scalia did what Scalia always does. Contending that he was driven by his distaste for the ACA doesn’t align. He doesn’t believe it’s in the purview of the Court to divine Congress’s goals/intentions and re-legislate for them when they bone it up. Strict textual adherence is one of his hallmarks. He’s extremely consistent in that and anyone that follows the court knew that if he penned a dissent that’s exactly what he’d say regardless of his personal feelings on the Act.

Hell, the article itself recognizes that in the second to last sentence but still can’t help attributing his dissent to his animosity towards the content of the Act even though there’s no real reason to do so...unless they just want to poke Scalia for shits and giggles.

But yeah, his philosophy was abjectly ignored by the majority this round.

davedave1111 > Rusty Vandura - www.tinyurl.com/keepoppo
06/26/2015 at 15:51

That’s not so much a summation of Scalia’s position as it is a work of pure fiction. I suggest these are a good read on the subject:

http://www.washingtonpost.com/news/volokh-co…

Scalia quite correctly objects to the Supreme Court abrogating to itself the power to legislate. He’s still a wanker, but he’s a wanker who’s right this time.

Rusty Vandura - www.tinyurl.com/keepoppo > davedave1111
06/26/2015 at 16:24

Well, I did not personally intend to make anything up, only to write a pithy paraphrasing of the analysis from Reuter’s. Even the author of the Reuter’s piece admits that Scalia “wasn’t 100% wrong...”

Even though Scalia is in the headline of the Reuter’s piece, I think we as a nation ought to be more worried about John Roberts’s creativity and opportunism, at least as I see it.

Rusty Vandura - www.tinyurl.com/keepoppo > jariten1781
06/26/2015 at 16:28

I meant only to suggest that the fact that Scalia’s oppinion happened to align with his personal view, and that this was a bonus.

I worry about Roberts as the loose canon in the SCOTUS. I think that this is overlooked by the Reuter’s author because the author is a fan of the ACA.

Rusty Vandura - www.tinyurl.com/keepoppo > Steve in Manhattan
06/26/2015 at 16:29

I think there’s a lot of that, in one shape or another. Still, it was 6 to 3, rather than 5 to 4, and I suspect that this is noteworthy.

jariten1781 > Rusty Vandura - www.tinyurl.com/keepoppo
06/26/2015 at 16:36

Wasn’t targeting you, it’s the article’s author who was a turd.

davedave1111 > Rusty Vandura - www.tinyurl.com/keepoppo
06/26/2015 at 16:39

Thing is, what you wrote is nothing like Scalia’s position. BAsically what he said is that if there’s a bad law, the SC’s job is to strike it down, tell the legislative branch to re-legislate - not to write new legislation to fix it. I think he has a very good point. If you let the judiciary make laws when they’re on your side, you face the problem that they may do so in future when they’re not on the right side.

Steve in Manhattan > Rusty Vandura - www.tinyurl.com/keepoppo
06/26/2015 at 17:40

It is. I’m a lawyer - never argued S.Ct. much less federal appeals, but when you write a brief, if you can find a unanimous decision to make your point, or 8-1 or 7-2, you use it. This may also deter conservatives if they want to take another run at the ACA - probably not, true believers, but you never know. And if Obama gets to replace Scalia, Scalito (not likely) or Thomas, it’s game over.

Rusty Vandura - www.tinyurl.com/keepoppo > Steve in Manhattan
06/26/2015 at 18:51

Looking more at the Gay Marriage decision out this week, and speaking of margins, it strikes me that whether or not the decision is principled, the winners are lucky . History could have stacked the court differently and it could have been 5-4 the other way.

Does it strike you that CJ Roberts is sort of opportunistic and creative in his blockbuster opinions? Is that what you’re talking about when you mention his legacy ?

Rusty Vandura - www.tinyurl.com/keepoppo > davedave1111
06/26/2015 at 18:56

Point taken. Still, what I wrote is what I understood the Reuter’s author to have written. What you write here is just how I see it — that the case probably should have been kicked back to Congress to let them fix that one sentence — and I think that at some level, Scalia’s position is more consistent than Roberts’s and perhaps, as a result, more principled. But as you pointed out so eloquently earlier, this does not make Justice Scalia not a wanker.

Rusty Vandura - www.tinyurl.com/keepoppo > jariten1781
06/26/2015 at 18:57

Can’t polish one of those. Are you an attorney? What do you think of my remark regarding CJ Roberts?

davedave1111 > Rusty Vandura - www.tinyurl.com/keepoppo
06/26/2015 at 19:42

I was talking more about the article than your summation - although your summation was based on it, so...

Steve in Manhattan > Rusty Vandura - www.tinyurl.com/keepoppo
06/26/2015 at 20:01

He wants to be as conservative as he can be, as corporate as he can be, as patrician as he can be, without destroying too many lives. Rehnquist didn’t quite manage that.

jariten1781 > Rusty Vandura - www.tinyurl.com/keepoppo
06/27/2015 at 11:48

Nah, not a lawyer. I did, however, spend the first 20 years of my life getting a de facto law education (my father is a lawyer and really wanted me to be one) so I know a bit more than Joe down the street whose on experience is the one time he got a DUI and when he got his divorce. I’ve helped prepare hundreds of cases and spent a lot of time taking notes and learning by osmosis in the court room. It wasn’t really my passion though so I ended up getting an engineering degree, then joining the Navy, and now I’m out as a practicing Systems Engineer and Program Manager. I’ve read every SC opinion since they started putting them on-line 15 or 20 years ago (or whenever it was) and I tend to follow all the oral arguments for the big stuff; but I’m far from a legal expert or analyst...just a concerned citizen with a law nerd hobby.

I don’t think the Chief Justice made his decision in any way shape or form because of allegiance to the Republican party...he’s frustrated them many many times. His MO is to defer to judicial restraint unless past precedent and the law as written is, in his own estimation, especially harmful in which cases he’ll align with the holistic ‘intent of the authors and understanding of the people’ liberal side of the court. It’s why he’s a swing vote and so unpredictable because people looking from the outside in can never tell when he’ll deem a law egregious enough to abandon restraint. But yeah, his vote was pretty much a foregone conclusion here...it was telegraphed by previous ACA opinions...he has decided that this is important enough to lean on ‘what he believes Congress meant’ not ‘what Congress did’ for all cases involving the ACA.

Rusty Vandura - www.tinyurl.com/keepoppo > jariten1781
06/27/2015 at 20:56

I’ve read about half of the Gay Marriage decision and have yet to read this one, but I will. I am surprised at what eloquent writers the justices are.

jariten1781 > Rusty Vandura - www.tinyurl.com/keepoppo
06/27/2015 at 22:09

Agreed; though Thomas is a bit dry at times. Kagan is my favourite from the liberal wing and Scalia from the conservative.

Rusty Vandura - www.tinyurl.com/keepoppo > jariten1781
06/27/2015 at 22:21

I don’t think I can comment objectively on Clarence Thomas. I think Scalia’s writing in his Gay Marriage dissent is brilliant and principled, though that decision did go the way I would personally have preferred it to go. I think that whatever one thinks of Antonin Scalia, he is consistent. Thank you for this dialog, by the way.