Now I really must say something about NFIB v. Sebelius, SCOTUS' big Obamacare decision, or you will think me a shirker.
Let's start with this datum: Chief Justice John Roberts is only the second SCOTUS Justice in the institution's history with that surname. Its a fairly common surname in English-speaking countries, so I don't know whether 2-out-of-112 is a lot or suspiciously few. Anyway, the coincidence seems worth mentioning because the previous Justice Roberts [Owen Roberts, a Hoover appointee on the court from 1930 to 1945] has gone down in history as the Justice who made the big switch, who turned the court from one with an anti-New Deal 5 Justice majority into one with a pro-New Deal 5 Justice majority by his own change of heart under political pressure in 1937.
Reference Guide
The usual accounts of that "switch in time" are sometimes too simply and broadly written, and certainly it wasn't all about Roberts. Chief Justice Hughes played a pivotal role too, as did mortality. (By the time of the attack on Pearl Harbor, Owen Roberts was the only appointee of any president other than FDR still on the court.)
But the fact is, in 1936 in US v. BUTLER, a 5 member majority of the court struck down parts of the Agricultural Adjustment Act. Roberts was part of that majority. Interestingly, in light of 2012 events, the Roosevelt administration had argued that the AAA was legitimate as an exercise of the Congressional taxing power. The court refused to understand the taxing power that broadly.
After the introduction of court-packing legislation early the following year, Roberts never again voted against any New Deal legislation. And no further such legislation was ever again struck down by the court.
Also worth mentioning in this connection, the administration revived the farm planning regime of the old AAA, defending the revised version on the theory not that it was a tax but that it was a regulation of interstate commerce. Roberts, and the court in general, accepted that, in the (somewhat absurdly reasoned) Wickard v. Filburn case.
Two Justices named Roberts.
Okay, the name thing is a meaningless coincidence. Still ... in NFIB v. Sebelius, the newer Roberts (who had been admired among conservatives in connection with the big campaign-finance decision of 2010, Citizens United) is on their fecal-matter list now. They believe that it was under the threat that the Obama administration would wage a campaign against the independence of SCOTUS that Roberts switched his own vote -- that he left the company of his conservative colleagues and decided the health-insurance mandate in particular could pass muster if the means of its enforcement, the so-called penalty for not insuring one's self, is instead understood as a tax.
So the first switch-in-time by the first Roberts involved the abandonment of a tax-based justification, and adoption of a commerce clause justification, for what the elective branches wanted to do. This one moved exactly the other way.
All this appeals to the pattern-finding instinct of my mind, as you've no doubt seen already.
I had planned to write only a three part discussion of the Supreme Court term just past, letting this entry serve as the last part. But I see now that this won't do. A bit more tomorrow.
Let's start with this datum: Chief Justice John Roberts is only the second SCOTUS Justice in the institution's history with that surname. Its a fairly common surname in English-speaking countries, so I don't know whether 2-out-of-112 is a lot or suspiciously few. Anyway, the coincidence seems worth mentioning because the previous Justice Roberts [Owen Roberts, a Hoover appointee on the court from 1930 to 1945] has gone down in history as the Justice who made the big switch, who turned the court from one with an anti-New Deal 5 Justice majority into one with a pro-New Deal 5 Justice majority by his own change of heart under political pressure in 1937.
Reference Guide
The usual accounts of that "switch in time" are sometimes too simply and broadly written, and certainly it wasn't all about Roberts. Chief Justice Hughes played a pivotal role too, as did mortality. (By the time of the attack on Pearl Harbor, Owen Roberts was the only appointee of any president other than FDR still on the court.)
But the fact is, in 1936 in US v. BUTLER, a 5 member majority of the court struck down parts of the Agricultural Adjustment Act. Roberts was part of that majority. Interestingly, in light of 2012 events, the Roosevelt administration had argued that the AAA was legitimate as an exercise of the Congressional taxing power. The court refused to understand the taxing power that broadly.
After the introduction of court-packing legislation early the following year, Roberts never again voted against any New Deal legislation. And no further such legislation was ever again struck down by the court.
Also worth mentioning in this connection, the administration revived the farm planning regime of the old AAA, defending the revised version on the theory not that it was a tax but that it was a regulation of interstate commerce. Roberts, and the court in general, accepted that, in the (somewhat absurdly reasoned) Wickard v. Filburn case.
Two Justices named Roberts.
Okay, the name thing is a meaningless coincidence. Still ... in NFIB v. Sebelius, the newer Roberts (who had been admired among conservatives in connection with the big campaign-finance decision of 2010, Citizens United) is on their fecal-matter list now. They believe that it was under the threat that the Obama administration would wage a campaign against the independence of SCOTUS that Roberts switched his own vote -- that he left the company of his conservative colleagues and decided the health-insurance mandate in particular could pass muster if the means of its enforcement, the so-called penalty for not insuring one's self, is instead understood as a tax.
So the first switch-in-time by the first Roberts involved the abandonment of a tax-based justification, and adoption of a commerce clause justification, for what the elective branches wanted to do. This one moved exactly the other way.
All this appeals to the pattern-finding instinct of my mind, as you've no doubt seen already.
I had planned to write only a three part discussion of the Supreme Court term just past, letting this entry serve as the last part. But I see now that this won't do. A bit more tomorrow.
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