Justice Roberts and ulterior motives in Obamacare decision: a hypothetical

The following is a hypothetical and I’m not claiming is what happened:

Assume that a Republican justice of SCOTUS thinks ACA (aka Obamacare), and specifically the individual mandate is unconstitutional, and so it’s best to have it struck down. But, he thinks, it could either be struck down by the court, or it could be repealed by a Republican controlled Congress and White House.

If he votes to uphold the law, and also upholds it by describing it as a new tax (a hated thing among conservatives that is sure to get them fired up to get up and vote), that could have the effect of getting people fired up to vote for Romney, who has promised to repeal the law. And if Romney gets elected, more conservative-friendly laws will pass.

So, on one hand, the justice could vote with the other conservatives in striking down Obamacare, with the possible effect of keeping Obama in office (since there is no longer this big specter of Obamacare that needs to be repealed, and conservatives are lukewarm about Romney anyway), which would go against advancing conservative ideals and positions.

And on the other hand, he could vote with the liberals and uphold the law (and make sure to uphold it as a new tax), with the possible effect of helping Romney win the election, which would in the long term help bring down Obamacare and advance other conservative ideals and positions.

Given the above hypothetical:
[li]Do you think that if Obamacare were struck down, Romney would have less of a chance of beating Obama this fall? (since one big motivator for voting for him would go away)[/li][li]Do you think a justice of SCOTUS would ever take such calculations into consideration?[/li][/ol]

Well, if he was that devious, he should have done all he could to delay the hearings until - bam! - October surprise.

You’ve been watching too much of the new Dallas.

This is completely contrary to conventional wisdom. There was talk about how MUCH Health Care Reform being struck down would have effected Obama’s re-election chances, but opinion was overwhelming that it would have done so negatively. The other day I said, “The only thing worse than having to campaign when your signature legislation is unpopular is having to campaign when you signature legislation is unpopular AND UNCONSTITUTIONAL.”

If Roberts wanted Obama out of office and was willing to compromise his integrity to do so, he’d have struck it down in a blistering dissent.

Only if the general electorate agreed with the decision. The Republicans, after all, have been running against Roe v Wade for years and getting votes for it.

Much more likely scenario:

  1. Roberts rendered an honest opinion on the merits of the case before him, without regard to the political fallout. That’s what Judges are supposed to do.

The notion that justices decide cases on their merits without regard to politics is a quaint one. I think that Roberts knew that striking it down on party lines would destroy the credibility of the Court, so he took one for the team and switched his vote.

That being said, it’s possible that he figured that upholding the law would energize the base behind Romney, leading to an Obama defeat and a string of Republican presidents who would pack the Court with right wingers who would outlaw abortion and make voting requirements so difficult as to effectively disenfranchise the entire Democratic base.

Huh, I never would have thought of your scenario. But the conspiracy theory I’ve heard batted around as most likely is that Roberts believes the ACA (as written) is unconstitutional, but because he knows that the country is moving towards Universal Health Care, he switched his vote so to be on the right side of history.

Nice conspiracy theory!

Sorry, I’m not buying it. I could buy the ‘right side of history’ thing though. But lean toward a judge voting outside of his political association, as he’s supposed to.

Does anyone seriously believe that Romney has even a shot at the White House? It all just seems like stupid political theatre somehow. Something to help the news networks sell advertising. It all just seems totally manufactured and unreal. They have to field a candidate so they spit up this guy, they don’t even seem to like him much sometimes.

He’s so transparently willing to say anything, hold any position, change any position, and dodge any question. He seems so wooden and uncharismatic, that I totally get why the Pubs didn’t even warm to him. He has raised tons of money, but lots of presidential losers had bigger war chests than the winner, it means nothing. And he’s a Mormon and wears funny underwear, that’s gotta rub a lot of the Christian Right the wrong way.

I don’t really see that he has a snowball’s chance in hell.

Another theory:

He was probably going to be separate from the other four conservatives anyway, as they appear to have wanted to strike down the entire law. That being said, by specifically saying that the mandate is unconstitutional unless it is considered a tax, he may have been signalling the Republicans that, if they can get 50 (plus the VP) in the Senate, then can overturn the mandate through “reconciliation” (which, as you may recall, is how the bill ended up being passed in its final form after the Democrats lost their filibuster-proof majority).

“John Roberts is still the same corporatist he was at eight o’clock Thursday morning. He still has not handed down a decision as Chief Justice that has made any American corporation uncomfortable. (Yesterday wasn’t one of those. The insurance companies still get paid by the huge pool of new customers the same way they did when the law was designed.) When he does that, just once, then I’ll start talking about his “high morality.” Until then, as much as I approve the outcome, I still see a guy who didn’t want to be Roger Taney for the next 20 years on the bench.” ~ Charlie Pierce on Esquire.com

One thing Robert’s got was another Supreme Court decision limiting the Commerce Clause. He allowed the act through the ability to tax.

I think the issue is a lot simpler: I think John Roberts HATES the Obamacare plan, and will vote against Obama enthusiastically this November (as he undoubtedly did in 2008), but doesn’t believe a stupid, unwieldy, badly conceived plan is automatically unconstitutional.

He chose to throw the issue back to the electorate: he’s telling the American people, “I don’t like this plan, but Congress passed it, and it’s not MY place to strike it down. If YOU don’t like it, vote out the people who enacted it.”

Sounds clear enough and reasonable enough to me.

“It’s almost too simple.”

Except if you believe those are Roberts’ goals, this is more complicated and less effective than the other options. So that’s kind of a problem for this theory. I suspect he thinks the law is a bad idea on a personal level but that he believes the judiciary should uphold laws passed by the legislature where it’s possible to do so, and that that was the case here.

This could be somewhat interesting as a debate or an IMHO thread, but you need not get into Roberts’ motivations or actions to discuss it.

I’m as cynical as the next guy, but I certainly hope that he would not go to such extensive machinations, and see no reason to believe he did anything other than reach his decision based on the merits. Unless someone can show me proof of political influences or that he acted on some desire to uphold the credibility of the court, while ignoring the law, I’ll continue ot think the whole idea is ridiculous.

I believe that the oddsmakers still have it running about 60/40 in favor of an Obama win in November. Definitely not ‘snowball in hell’ odds. I’d bet on Obama myself, even at those odds, but not at much higher …

What’s the limit though? Where’s the bright line? Roberts didn’t bother to articulate one. It seems to me that there isn’t one. “We could limit the OCA on Commerce Clause grounds, but not on Taxing Power grounds” isn’t much of a bright line. There’s not a heck of a lot of guidance there.

Arrrgh! The Democrats never had a filibuster-proof majority during the Obama administration! I keep seeing this misstatement from righties all the time (“Why didn’t Obama do something when he had full control of the Congress? Wahh wahh do-nothing lazy liberal!”), but I hate to see it even here on the Dope.

After the 2008 elections, the Democrats held 57 seats in the Senate, along with 2 independents who caucused with them. That makes 59. There were still 41 Republicans in the Senate … and that’s all it takes for a filibuster. You need 60 votes in the Senate to limit debate, and I think my math skills show 59 is less than 60.

Remember the push to get Olympia Snowe and/or Susan Collins to vote with the Democrats during this whole Affordable Care Act process? They needed to get at least one Republican to join them in order to thwart the filibuster. They did indeed turn to reconciliation when they couldn’t even sway one Republican for parts of the bill.

So, yeah. Obama never had a filibuster-proof majority. Tell your friends and neighbors, because they’ve been told differently by the right-wing media for almost four years now.

And we now return to our regularly scheduled debate, already in progress.

That’s not right. They had 60 votes after Spector switched parties and Franken finally seated until Kennedy was replaced by Scott Brown. No Republican voted for the ACA, it was passed with 60 Democratic votes.

Between Robert Byrd and Teddy Kennedy being incapacitated for much of the time and then Scott Brown replacing Kennedy’s appointed seat holder, their actual window of having sixty voting senators was pretty short, but it did happen and its the reason the ACA was passed.

This isn’t really right either. The ACA was passed by a filibuster proof 60 votes. Some changes were made later via reconciliation, but those changes were mainly just tweaks, and didn’t include the mandate, or really anything else essential to the legislation.

Which doesn’t mean the mandate can’t be repealed through Reconciliation, but it wasn’t passed that way initially.