Ginsburg, without a doubt.
Ginsburg would be wrong in your example. Considering that Ginsburg was one of the Justices who questioned the limits, or lack of limits, that would exist on the Federal government if the SC ruled in favor of Obamacare “as it was written by Congress”, I wouldn’t count on Ginsburg ruling wholly in favor of the governments position.
Congress can write another bill that limits this overreach to healthcare and only healthcare. Similar to how child porngraphy is considered differently than pornography. Passing a bill that allows the Fed to mandate anything and everything in the future would remove the SC from ever reviewing or questioning the actions of the legislative branch.
And bills have been written, passed, and found to be unconstitutional as well as constitutional. Congress can write another bill that passes Constitutional muster.
Passing a bill that isn’t even fully written yet is absurd. It was argued on the floor of Congress that the funding for this would not be a tax. That’s in the Congressional record, which will be part of the courts deliberations. Just what did Congress mean when they passed this bill.
It is argued now that because the funding is considered a tax, and no one can file suit against it until they actually have to pay the tax???
What Congress meant, or said, or says now is confusing. The Justices are being asked to resolve 4 specific question pertaining to this bill. The first, and most important, is whether the SC has jurisdiction. If the SC decides that they don’t have jurisdiction, the rest of the questions are moot. If the SC has jurisdiction, they then have to decide if the fund rasiing portion is actually constitutional. They’ll also have to decide if portions of the bill are unconstitutional or if the whole bill is unconstitutional. There’s also the possibilty that the SC will decide that only portions of the bill are unconstitutional but that the whole bill should be tossed because it is unworkable without manditory funding.
Time will tell.
President Obama insisted that it’s not a tax. I suppose he’s wrong too.
You didn’t realize that? They were pretty vocal about how we had an absolute moral imperative to not pay our debts, about a year ago.
And Nars, it’s not that Obama’s wrong when he says that it’s not a tax, but that he’s irrelevant. It is what it is, regardless of what anyone (yes, even including Congress and the President) calls it.
I disagree with your assessment that this is just a difference in judicial philosophies. I think it’s an ideological difference and some conservative judges actively rule in favor of conservative causes just as some liberal judges actively rule in favor of liberal causes. And then these activist judges find a judicial philosophy which corresponds to the decision they made.
This article makes a similar argument (specifically about Scalia): “Justice Scalia likes to boast that he follows his strict-constructionist philosophy wherever it leads, even if it leads to results he disagrees with. But it is uncanny how often it leads him just where he already wanted to go.”
He said in general. In general, he is correct. The fact that some decisions are clearly political (*cough Bush v. Gire cough) does not mean all of them are.
He might be, but it’s irrelevant. Obama didn’t vote on the bill. His comments are not part of the legislative history.
I agree with this. The “balls and strikes” analogy was mentioned by Justice Roberts during his confirmation hearing. He also said that judges should decide cases as narrowly as possible, addressing only the question before them and not using a case as a forum to advance personal agendas by issuing broader decisions. We saw how that worked out in Citizen’s United.
As a principle it doesn’t bother me that justices expand the scope of their decisions–even though in this case I didn’t agree with the outcome. But it’s galling to hear conservatives pretend their just doing what the constitution says, and are injecting no bias into their decisions. There are no perfect umpires on the court; they’re fans like everybody else.
How?
How do we know where he wanted to go though?
Pick the right wing position on any issue. That’s the way he wants to go and that’s the way he’ll rule.
Brown v. Entertainment Merchants Association: can a state ban the sale of certain violent video games to children without parental supervision?
The right-wing position is (I assume) “Yes.” Scalia voted with Ginsburg, Breyer, Sotomayor, and Kagan, saying “No.”
I can cite a number of cases where Scalia “crossed lines” and voted to sustain a result that was favored by the left. What does that do your theory?
What do you mean by “non political”?
Except for Obama’s incessant whining about the SC not doing what he tells them to do, Obama opinion has no standing in this case. Except maybe to pssst them off.
I don’t see the video game censorship as a right v left issue. There is corporate money to be made by selling games- sucking up to corporations is why the Republican Party exists.
Kyllo v. US. Thermal imaging of a house is a search? Ginsburg, Scalia join to say yes. Rehnquist and others say no.
I’m not sure there’s a clear “right-wing” position on searches and seizures. The perhaps more paleoconservative belief in strong law enforcement is balanced by the libertarianish fear of Big Brother.
Anyway, Kyllo was silly. Scalia was trying to create a rule that would work in a future he couldn’t conceive of.
Examples of cases where Scalia joined with the liberals:
Kyllo v. United States - Scalia limits thermal scanning. Not exactly a major impact on the average person’s life.
Texas v. Johnson - Scalia upholds the rights of radical extremists to look like idiots and discredit the entire left by association. Again, a minor issue that probably effected about ten people.
Cuomo v. Clearing House Association LLC - Scalia pushes the balance of power from the federal government to the states. In the Spring of 2009 when the Democrats have taken control of the federal government.
I never said Scalia was stupid. He’s able to look past the case in front of him and see the long-term. And he always leaves himself an out by establishing some standard that’s visible only to his eyes. That makes it possible for him to rule the other way in the future by claiming this new case didn’t meet the standard of the previous case.
Look at the Cuomo decision. Want to bet Scalia’s interpretation of visitorial rights will change the next time the Republicans are running the Treasury Department?
Texas v Johnson: the flag burning case.
Hamdi v Rumsfeld: habeas corpus.