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Who's the clever one?
Jul. 2nd, 2012 02:07 pmHuffpost Radio's host of the conversation on the recent court decisions said something both true, and stupid.
Since his Commerce Clause language had nothing to do with the conclusion that the law was constitutional, it should and will be regarded-by future courts as interesting dicta,
It's true. Robert's comments on the commerce clause are dicta, and it's also true that Ginsburg savaged the ideas in it. But dismissing it as irrelevant because it's merely dicta ignores how some of the most sweeping changes in the way the US is run having arisen from just such an, "interesting dicta".
"One of the points made and discussed at length in the brief of counsel for defendants in error was that 'corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Waite said:The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." [SANTA CLARA COUNTY v. SOUTHERN PAC. R. CO., 118 U.S. 394 (1886) 118 U.S. 394]
That was dicta. From that dicta the idea was expanded in Lochner [LOCHNER v. PEOPLE OF STATE OF NEW YORK, 198 U.S. 45 (1905) 198 U.S. 45] (which is still being used to claim that governmental regulation constitutes a violation of substantive due process).
Amour Packing Co. v U.S. [ARMOUR PACKING CO. v. U. S., 209 U.S. 56 (1908) 209 U.S. 56] gave corporations the right to jury trial. At the same time corporations have far fewer punishments which can be levied against them. It's actually impossible to pass a "death sentence" on one. Any fine which is too great is scaled back. As a result it's more cost effective for a business to fail to install protective devices, or train workers in how to safely use equipment ( as Agro Farma did at it's Syracuse New York yogurt factory) because it's cheaper to do that.
In See v City of Seattle[ [SEE v. CITY OF SEATTLE, 387 U.S. 541 (1967)387 U.S. 541] held that inspections of a business to see that it's in compliance with the fire code was the same as if it were searching a personal residence. No warrant means that an inspector can be refused access to any area not available to the general public.
It was the underlying argument in Citizens United v Federal Elections Commission[Citizens United v. Federal Election Commission, 558 U.S. 50, 130 S. Ct. 876, 175 L. Ed. 2d 753, 187 LRRM 2961 (2010)]
The Court has taken a beating in the public mind in the past 20-30 years. The Right has been unhappy with it since at least the mid-fifties, and that's generous. They weren't too happy with some of the rulings made in support of The New Deal, even FDR wasn't allowed to expand the court. It's an interesting question what the longer term effect of that would have been. More justices would probably have made the interval between large swings of the Court's bias longer. It's possible a more centrist court would have arisen.
So Roberts has managed to see the writing on the wall. He's got the advantage of not being party to Bush v Gore. I think his leaving Scalia's faction and supporting, in this back-handed way, the ACA† ruling is better politics than Scalia is capable of doing‡ I suspect it's also more effectively partisan jurisprudence. He has created a new piece of dicta that Scalia, and Alito, and Thomas, and Kennedy, can use to nibble away at the commerce clause; all without have an actual decision to overturn; thus insulating the actual tool from direct attack. On top of that he's planted a trojan horse in the public mind.
Go ahead, read the press. Vast amounts of it is lauding Roberts. Saying things about how well he looked at the facts; how he forwent base politics in this ruling. That was canny. The next time someone tries to point out some nominee is like Scalia (who has said lately that he doesn't need to read the briefs' the petitions for certiorari pretty much tell him how to rule), or an Alito, or a Thomas. An ideologue who is going to vote personal politics over legal theory, there's Roberts to be held up as an example of how "being appointed to the bench of The Supreme Court makes people look past politics to a set of higher principles".
Bullshit. We have a system, at present, where judges appointed by Nixon would be too liberal to get a nomination by a Democratic president, much less be passed out of committee. It's not going to get better if Roberts is seen as, "moderate".
†Which is, we must remember, a fundamentally Conservative/Business based plan. It was the Heritage Foundation's counterproposal to the Clinton plan to move the US to a more single-payer styled plan. That's part of how Romney made it work as an idea in Mass. It seems that was meant to make Mass. a model for the rest of the country, and so work on making the "reform" of healthcare both more sustainable, and keep it profitable for the insurance companies, who were/are headed toward a "peak oil" problem as they run out of healthy people to squeeze money out of, but I digress
‡I think Scalia is too proud, and too full of his sense of genius; which is exacerbated by no one he respects telling him he's full of shit; he is praised for his hypocrisies. As a result he thinks his decisions will create binding precedent; even as he rides roughshod over extant precedent. Hubris is one of his failings. It's why he couldn't try to take the route of joining the majority in this, and making a similar set of undercutting arguments.
Since his Commerce Clause language had nothing to do with the conclusion that the law was constitutional, it should and will be regarded-by future courts as interesting dicta,
It's true. Robert's comments on the commerce clause are dicta, and it's also true that Ginsburg savaged the ideas in it. But dismissing it as irrelevant because it's merely dicta ignores how some of the most sweeping changes in the way the US is run having arisen from just such an, "interesting dicta".
"One of the points made and discussed at length in the brief of counsel for defendants in error was that 'corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument, Mr. Chief Justice Waite said:The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." [SANTA CLARA COUNTY v. SOUTHERN PAC. R. CO., 118 U.S. 394 (1886) 118 U.S. 394]
That was dicta. From that dicta the idea was expanded in Lochner [LOCHNER v. PEOPLE OF STATE OF NEW YORK, 198 U.S. 45 (1905) 198 U.S. 45] (which is still being used to claim that governmental regulation constitutes a violation of substantive due process).
Amour Packing Co. v U.S. [ARMOUR PACKING CO. v. U. S., 209 U.S. 56 (1908) 209 U.S. 56] gave corporations the right to jury trial. At the same time corporations have far fewer punishments which can be levied against them. It's actually impossible to pass a "death sentence" on one. Any fine which is too great is scaled back. As a result it's more cost effective for a business to fail to install protective devices, or train workers in how to safely use equipment ( as Agro Farma did at it's Syracuse New York yogurt factory) because it's cheaper to do that.
In See v City of Seattle[ [SEE v. CITY OF SEATTLE, 387 U.S. 541 (1967)387 U.S. 541] held that inspections of a business to see that it's in compliance with the fire code was the same as if it were searching a personal residence. No warrant means that an inspector can be refused access to any area not available to the general public.
It was the underlying argument in Citizens United v Federal Elections Commission[Citizens United v. Federal Election Commission, 558 U.S. 50, 130 S. Ct. 876, 175 L. Ed. 2d 753, 187 LRRM 2961 (2010)]
The Court has taken a beating in the public mind in the past 20-30 years. The Right has been unhappy with it since at least the mid-fifties, and that's generous. They weren't too happy with some of the rulings made in support of The New Deal, even FDR wasn't allowed to expand the court. It's an interesting question what the longer term effect of that would have been. More justices would probably have made the interval between large swings of the Court's bias longer. It's possible a more centrist court would have arisen.
So Roberts has managed to see the writing on the wall. He's got the advantage of not being party to Bush v Gore. I think his leaving Scalia's faction and supporting, in this back-handed way, the ACA† ruling is better politics than Scalia is capable of doing‡ I suspect it's also more effectively partisan jurisprudence. He has created a new piece of dicta that Scalia, and Alito, and Thomas, and Kennedy, can use to nibble away at the commerce clause; all without have an actual decision to overturn; thus insulating the actual tool from direct attack. On top of that he's planted a trojan horse in the public mind.
Go ahead, read the press. Vast amounts of it is lauding Roberts. Saying things about how well he looked at the facts; how he forwent base politics in this ruling. That was canny. The next time someone tries to point out some nominee is like Scalia (who has said lately that he doesn't need to read the briefs' the petitions for certiorari pretty much tell him how to rule), or an Alito, or a Thomas. An ideologue who is going to vote personal politics over legal theory, there's Roberts to be held up as an example of how "being appointed to the bench of The Supreme Court makes people look past politics to a set of higher principles".
Bullshit. We have a system, at present, where judges appointed by Nixon would be too liberal to get a nomination by a Democratic president, much less be passed out of committee. It's not going to get better if Roberts is seen as, "moderate".
†Which is, we must remember, a fundamentally Conservative/Business based plan. It was the Heritage Foundation's counterproposal to the Clinton plan to move the US to a more single-payer styled plan. That's part of how Romney made it work as an idea in Mass. It seems that was meant to make Mass. a model for the rest of the country, and so work on making the "reform" of healthcare both more sustainable, and keep it profitable for the insurance companies, who were/are headed toward a "peak oil" problem as they run out of healthy people to squeeze money out of, but I digress
‡I think Scalia is too proud, and too full of his sense of genius; which is exacerbated by no one he respects telling him he's full of shit; he is praised for his hypocrisies. As a result he thinks his decisions will create binding precedent; even as he rides roughshod over extant precedent. Hubris is one of his failings. It's why he couldn't try to take the route of joining the majority in this, and making a similar set of undercutting arguments.
