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Are there five votes against ObamaCare on the SCOTUS? - georgia_tech_swagger - 02-01-2011 12:45 PM
http://reason.com/blog/2011/02/01/are-there-five-supreme-court-v
RE: Are there five votes against ObamaCare on the SCOTUS? - Native Georgian - 02-01-2011 12:54 PM
The article suggests that Chief Justice Roberts may vote to uphold the constitutionality of ObamaCare, and that it would be a mistake to focus solely on Justice Kennedy as "the" swing vote.
But look at it this way: If Kennedy votes with the liberal bloc, then the law is upheld 5-4 regardless of what Roberts does. And if Kennedy votes with the conservative bloc, does anyone really think Roberts would vote to Kennedy's left? I don't think there is any serious chance of that, whatsoever.
RE: Are there five votes against ObamaCare on the SCOTUS? - I45owl - 02-01-2011 02:52 PM
(02-01-2011 12:54 PM)Native Georgian Wrote: The article suggests that Chief Justice Roberts may vote to uphold the constitutionality of ObamaCare, and that it would be a mistake to focus solely on Justice Kennedy as "the" swing vote.
But look at it this way: If Kennedy votes with the liberal bloc, then the law is upheld 5-4 regardless of what Roberts does. And if Kennedy votes with the conservative bloc, does anyone really think Roberts would vote to Kennedy's left? I don't think there is any serious chance of that, whatsoever.
Why - because he may not be re-elected?
I kind of cringe with the thread title here - they are not voting for or against policy or a specific bill, but on legal technicalities.
RE: Are there five votes against ObamaCare on the SCOTUS? - Hambone10 - 02-01-2011 04:26 PM
AND they are likely merely voting on whether or not people can be 'forced" to buy something, and not whether or not they agree with the policies
RE: Are there five votes against ObamaCare on the SCOTUS? - Native Georgian - 02-01-2011 05:14 PM
(02-01-2011 02:52 PM)I45owl Wrote: Why - because he may not be re-elected?Because if the legal arguments against ObamaCare are persuasive to someone like Tony Kennedy, I am positive that they will be persuasive to someone like John Roberts, too.
Quote:I kind of cringe with the thread title here - they are not voting for or against policy or a specific bill, but on legal technicalities.Well, that is what they are Supposed to be voting on. And I think with a man like Roberts, he does do that. But with people like Kennedy, I honestly don't believe he does. On the contrary, I think he decides what social/political outcome he desires, then works his way back from there in search of some judicial rationale that will justify his preferences.
RE: Are there five votes against ObamaCare on the SCOTUS? - SumOfAllFears - 02-01-2011 05:25 PM
There are two courses of action for the Obama justice dept. Push for an expedited path, or sandbag.
RE: Are there five votes against ObamaCare on the SCOTUS? - Owl 69/70/75 - 02-01-2011 05:27 PM
(02-01-2011 05:14 PM)Native Georgian Wrote:(02-01-2011 02:52 PM)I45owl Wrote: Why - because he may not be re-elected?Because if the legal arguments against ObamaCare are persuasive to someone like Tony Kennedy, I am positive that they will be persuasive to someone like John Roberts, too.
Quote:I kind of cringe with the thread title here - they are not voting for or against policy or a specific bill, but on legal technicalities.Well, that is what they are Supposed to be voting on. And I think with a man like Roberts, he does do that. But with people like Kennedy, I honestly don't believe he does. On the contrary, I think he decides what social/political outcome he desires, then works his way back from there in search of some judicial rationale that will justify his preferences.
This is what the court always does
1. Figure out the outcome they want
2. Come up with the rationale to justify it
3. If they can use more than one rationale, then go with the one that they think has the narrowest application, to keep from painting themselves in a box later.
Sometimes those rationales don't turn out to be as narrow as they had hoped, and that causes problems.
RE: Are there five votes against ObamaCare on the SCOTUS? - Native Georgian - 02-01-2011 06:41 PM
(02-01-2011 05:27 PM)Owl 69/70/75 Wrote: This is what the court always doesI agree that justices like Kennedy do that. And I am sure that the temptation to do so effects all of the justices at some point or another (this is the context that Robert Bork was referring to when he titled his 1990 book "The Tempting of America." I have read that book all the way through maybe 5 or 6 times in the last 21 years. It is, by far, the truest guide to US Constitutional law I have yet come across). But I also think some other judges -- Breyer, Roberts, simply to name one liberal and one conservatives -- really do make a genuine, good-faith effort to apply the law as it really is, without merely "voting" for the "side" they want to "win." The fact that they make the effort does not necessarily mean the effort is successful every time. But it's still not the same as the Kennedy-approach.
1. Figure out the outcome they want
2. Come up with the rationale to justify it
3. If they can use more than one rationale, then go with the one that they think has the narrowest application, to keep from painting themselves in a box later.
RE: Are there five votes against ObamaCare on the SCOTUS? - MileHighBronco - 02-01-2011 06:53 PM
Where the rubber hits the road is the point being made over and over. If it is not ruled unconstitutional by the Supremes, then what intrusions into our lives will not be permissable by the executive and/or legislative branch of our government? The expansion of the Commerce Clause to to absurd levels will allow all kinds of meddling and mischief by government. I'm sure that point is not lost on the judges. THAT is where we will see if they are circumspect about the ramifications to our society, our government and the liberty of the people of this nation.
I know that sometimes, some of them work backwards from their desired outcome. In this case, I hope they think long and hard because this would open a whole new can of worms and the results of a bad decision could cripple us for generations.
At least this latest ruling was well reasoned and written.
RE: Are there five votes against ObamaCare on the SCOTUS? - Hambone10 - 02-01-2011 07:26 PM
So can they require you to wear a condom or use a birth control pill?
RE: Are there five votes against ObamaCare on the SCOTUS? - Cardiff - 02-01-2011 07:35 PM
(02-01-2011 07:26 PM)Hambone10 Wrote: So can they require you to wear a condom or use a birth control pill?well, as milehigh bronco said, its where the rubber hits the road, isn't it?
right now today, they woudn't try to force that issue
if this health care thing stands, give the country another 40-50 years to get used to it, then check back and see
RE: Are there five votes against ObamaCare on the SCOTUS? - MileHighBronco - 02-01-2011 07:46 PM
(02-01-2011 07:26 PM)Hambone10 Wrote: So can they require you to wear a condom or use a birth control pill?
It depends on WHO is doing the REQUIRING.
While it may sound great to the average prog right now, should the other side get into power, it could all come back to bite them in the azz.
RE: Are there five votes against ObamaCare on the SCOTUS? - Paul of Troy - 02-01-2011 07:54 PM
(02-01-2011 07:26 PM)Hambone10 Wrote: So can they require you to wear a condom or use a birth control pill?
Eventually it may be necessary to control the birth rate with the world population expected to double in roughly 60-70 years.
RE: Are there five votes against ObamaCare on the SCOTUS? - Claw - 02-01-2011 10:26 PM
I think you'll all be surprised. This will be a unanimous decision against the bill.
RE: Are there five votes against ObamaCare on the SCOTUS? - Native Georgian - 02-01-2011 11:21 PM
(02-01-2011 10:26 PM)Claw Wrote: I think you'll all be surprised. This will be a unanimous decision against the bill."Surprised" won't even begin to describe my reaction if that happens.
RE: Are there five votes against ObamaCare on the SCOTUS? - WoodlandsOwl - 02-01-2011 11:59 PM
You all forget Kagan's Office filed a Brief supporting he DoJ's position in the Florida litigation.
Using her prior recusal position, that takes her out of this case... making it a 8 Justice Court.
A 4-4 decision won't work. You need 5-3 to find it unconstitutional.
RE: Are there five votes against ObamaCare on the SCOTUS? - Native Georgian - 02-02-2011 01:02 AM
(02-01-2011 11:59 PM)WMD Owl Wrote: You all forget Kagan's Office filed a Brief supporting he DoJ's position in the Florida litigation.That depends. A 4-4 decision has the effect of upholding the Appellate Court decision, Regardless of the Appellate Court's holding. So if (for example) the 11th Circuit Court in Atlanta were to uphold Judge Vinson's decision from the District Court in Florida, then a 4-4 decision by the Supremes would leave that decision in place.
Using her prior recusal position, that takes her out of this case... making it a 8 Justice Court.
A 4-4 decision won't work. You need 5-3 to find it unconstitutional.
I repeat that Kagan would find some way to cast a vote in this case if she thought it would make the difference -- even in spite of the DOJ brief which she officially signed. But anyway, there will be several turns in the plot before we get to that point.
RE: Are there five votes against ObamaCare on the SCOTUS? - I45owl - 02-02-2011 02:12 AM
(02-01-2011 07:46 PM)MileHighBronco Wrote:(02-01-2011 07:26 PM)Hambone10 Wrote: So can they require you to wear a condom or use a birth control pill?
It depends on WHO is doing the REQUIRING.
While it may sound great to the average prog right now, should the other side get into power, it could all come back to bite them in the azz.
What does Tiger have to do with this?
(02-01-2011 07:54 PM)Paul of Troy Wrote:(02-01-2011 07:26 PM)Hambone10 Wrote: So can they require you to wear a condom or use a birth control pill?
Eventually it may be necessary to control the birth rate with the world population expected to double in roughly 60-70 years.
pftt. That's what wars are for.
RE: Are there five votes against ObamaCare on the SCOTUS? - Owl 69/70/75 - 02-02-2011 05:04 AM
(02-01-2011 11:59 PM)WMD Owl Wrote: You all forget Kagan's Office filed a Brief supporting he DoJ's position in the Florida litigation.
Using her prior recusal position, that takes her out of this case... making it a 8 Justice Court.
A 4-4 decision won't work. You need 5-3 to find it unconstitutional.
Agreed, but that's really no change, because she was always going to vote to uphold. Either way you need 5 to overturn, and she's not one of them.
I assume she will recuse, though I don't believe she is obligated to do so. It keeps her looking clean, and it doesn't affect the outcome.
Of course, I can see the democrats searching far and wide to try to trump up some reason why one of the conservative justices should recuse ("Justice So-and-so once went to the doctor and paid cash for it, so he's prejudiced against insurance"), and if he doesn't then Kagan stays and they try to taint the outcome.
The democrats have a LOT at stake here. Will they try to screw the process? I wouldn't put it past them.
RE: Are there five votes against ObamaCare on the SCOTUS? - SumOfAllFears - 02-02-2011 07:32 AM
Delay, delay, delay, until an advantage comes along.