Is government an "impetuous vortex" or a "hideous monster [with] devouring jaws"?

Reading the Obamacare case in class preparation today, I notice those 2 metaphors, both taken from the Federalist Papers, both used in the process of saying that the Commerce Power doesn't support the requirement that everyone buy health insurance. "Impetuous vortex" — from The Federalist No. 48, written by James Madison — is quoted in  Chief Justice Roberts's opinion:

The Government’s theory [of the scope of the commerce power] would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”

The "hideous monster [with] devouring jaws" — written by Alexander Hamilton in The Federalist No. 33 — appears in Justice Scalia's opinion:

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws... spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

Many have noted that Scalia (joined by Kennedy, Thomas, and Alito) did not join the Roberts opinion on the Commerce Clause, even though they said basically the same thing about it. Their spirit of resistance shows even through their choice of a different Federalist Paper with a different author and a different metaphor for government's voracious maw.

"He then kissed his wife, whom he called 'Sweetie,' and told his daughters, 'I did it.'"

Oath sworn. Video at the link. First thing you see is Chief Justice Roberts walking into the room, and if you're like me, you said, "Don't fuck it up this time."

Does that seem ambiguous? I meant don't screw up the oath again.

Another crude vocalization that emerged from me recently is: "Why is Dana Milbank pooping on the inauguration?'

Chief Justice Roberts informs Congress that the federal judiciary is scraping by on a mere $7 billion a year.

$7 billion! Why, if that were one person's entire fortune, he'd only be #50 on the Forbes list of richest Americans. He'd only just butt ahead of Charles Butt.

The Chief stressed the bargain we the people are getting:

“Yes,” he went on, “for each citizen’s tax dollar, only two-tenths of one penny goes toward funding the entire third branch of government!”

In the report, Chief Justice Roberts said the judiciary was doing what it could to cut costs in rent, salaries and computer services...

The federal courts went to great lengths last year in trying circumstances, notably after Hurricane Sandy. “As just one example,” he said, “the United States District Court for the Southern District of New York conducted emergency hearings in Lower Manhattan the day after the storm hit, working in a building without heat or hot water that was only sparsely lit by gas-fueled emergency generators.” Though Chief Justice Roberts did not say so, the Supreme Court also showed fortitude the day the storm hit, hearing arguments when the rest of official Washington was closed.

I could think of quite a few ways to economize on the federal courts — things Congress could do. The courts are forced to handle the cases that fall within their jurisdiction, but Congress could target litigation-generating laws for repeal.

ADDED: Another way to increase that "two-tenths of one penny" proportion would be to reduce spending on things that are not the judiciary.

Robert Bork has died.

He was 85.

From the above-linked NYT obituary:

Judge Bork, a bear of a man with a scraggly red beard and untamed frizz on a balding pate who liked to eat, drink and smoke for much of his adult life, handled himself poorly in front of the [Senate Judiciary] committee and failed to give doubters confidence. As Tom Shales, the television critic for The Washington Post, wrote of his testimony: “He looked, and talked, like a man who would throw the book at you — maybe like a man who would throw the book at the whole country.”

See that's what I was just talking about: Liberals used to express abhorrence of law-and-order types.

The NYT obit refers to "the notion that the nominee was somehow unfeeling as a judge." Somehow... a notion... Where, oh, where could it come from?!

This [notion] was amplified when, asked by a sympathetic senator, Alan Simpson, Republican of Wyoming, why he wanted to serve on the Supreme Court, Judge Bork replied that it would be “an intellectual feast.”

And that was it, the worst answer ever given to any question in the history of the United States. Intellectual feast! The feast turned out to be a feeding frenzy for the liberal media. Why, they're still picking kinky reddish beard hairs out of their back molars! Burrrrp! Tasty! What a time! And no Supreme Court nominee has said one interesting thing since. Every single one has promised to be a good little judge who would never ever do anything but serve humbly and modestly deciding the cases according to the law.

You think it was interesting that John Roberts said he saw himself as an umpire, calling balls and strikes? That proves my point! I know, Clarence Thomas, "high-tech lynching," but that wasn't about doing the judicial work, so I'm excluding that from the point, which is that they all learned what not to do from Bork. Presidents learned to avoid even picking someone Borkish, so no one was allowed to look weird, speak quirkly, seem like an intellectual with ideas of his own, it would just be bland blandness served atop a steaming pile of blandness. That is: Not tasty! As a live-blogger of nomination hearings, I want to know: Where's my intellectual feast?

ADDED: When C-SPAN put its entire archive up on-line, the first thing I looked up to relive was the Bork hearings:

"If States Don't Set Up Insurance Exchanges, Will 'Obamacare' Implode?"

Stuart Taylor Jr. explains the glaring problem with the federal exchanges. I'll just quote his parting shot:

And in the perhaps unlikely event that the dispute over the powers of federal exchanges reaches the Supreme Court, would Chief Justice John Roberts -- having made his uneasy peace with "Obamacare" in June -- have the stomach to resume hostilities based on a legal analysis that even lawyers find hard to follow?

The stomach to resume hostilities? I would not assume that Roberts "made peace" with Obamacare. He may believe he delivered a wound that escaped notice but will prove fatal.

As I said a month ago:



ADDED: "It's a slow-motion topple. We just haven't seen it go down yet.:

Did Chief Justice John Roberts "lose his cool"?

I keep reading about this incident, invariably with the focus on the Chief's demeanor, causing me to suspect that the press is covering for the Obama administration again:

The chief justice accused the solicitor general’s office of being less than candid, by suggesting (as he read the government’s brief) that the secretary of labor in the Bush administration had changed her mind “upon further reflection” when that was not the reason at all. Instead, he corrected, it was “a new secretary now under a new administration” who had done so.

The chief justice scolded, “Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.”

You can listen to the interchange here, beginning at 29:00. Roberts sharply criticizes the government's lawyer, Joseph R. Palmore, for something that — it seems rather obvious — deserves criticism. I don't hear Roberts becoming inappropriately emotional, which is what "losing his cool" means.

Now, if you want to say Roberts is a hypocrite because his writing is equally disingenuous or worse, that's another matter. It's what Andrew Cohen at The Atlantic is doing in an item titled "The Nerve of John Roberts":

A little disingenuous. This from a judge who disappeared the scope of the Commerce Clause in the Affordable Care Act case.

Disappeared the scope? That's Cohen's way of referring to the identification of some limit on the scope of the commerce power, so that it didn't reach a private citizen's failure to purchase insurance. Congress has power under the Commerce Clause to regulate nearly everything else, which to Cohen's eye is no power at all. Unless it's everything, it's nothing. Disappeared!

This from a judge who gutted decades of First Amendment precedent in the Citizens United case after reaching out, unilaterally, to expand the scope of that campaign finance case.....

Yes, yes, roll out your list of Supreme Court decisions you wish went the other way. That's not in the same category as deceptively stating the facts of a case, which is simply not acceptable in lawyers' briefs. The Solicitor General's office disserved us. The Chief Justice called the lawyer on a deception and — with restraint — said he "found it a little disingenuous."

What I find disingenuous is the criticism of the Chief Justice. And after all he did for you upholding Obamacare! (He used the tax power instead of the commerce power).

But no thanks will be forthcoming. Pressure must be kept up. This is a big term for the Supreme Court — gay marriage (probably), affirmative action, the Voting Rights Act — and Roberts's vote may be required to reach what the media know are the right results. Roberts needs to know that any love for him is purely contingent. He's being watched.

"The senior employee knows that one of the other employees doesn't like country music, so he tells her, 'If you don't date me, it's going to be country music all day long.'"

"Does that make the senior employee the supervisor?" — asked Chief Justice John Roberts.

"The editors of Esquire have included Chief Justice Roberts in their December 'Americans of the Year' issue, praising his 'nimbleness.'"

"After the Citizens United decision on free speech and political spending, he found a way [in the Obamacare case] 'to save the court's credibility."

The Wall Street Journal editors note "the strange new respect a conservative receives for sustaining liberal priorities."

If Romney wins, will it lead to the the Supreme Court overruling Roe v. Wade?

I explain why the answer is probably no, and that if it were yes, it would hurt the GOP:



This clip begins with an explanation of what Chief Justice Roberts did in the Obamacare case. Also, I speculate about what kind of Justices a President Romney might appoint. I don't expect them to be such staunch conservatives.

Linda Greenhouse is embarrassed for the Supreme Court and for Texas.

After reading/listening to the oral argument in Fisher v. University of Texas.

Roberts and Scalia were obviously trying "to make the university’s commitment to assembling a diverse student body look silly."

Arlen Specter has died.

He was 82.

ADDED: He played an important role in Supreme Court nominations:

Arriving on Capitol Hill in 1981, he became a dominant force during the Judiciary Committee’s rancorous Supreme Court nomination battles. More than anyone else, he helped defeat conservative nominee Robert Bork in 1987, and his aggressive questioning of law professor Anita Hill four years later — he accused her of “flat-out perjury” — helped secure Clarence Thomas’s confirmation....

“He was a Rockefeller Republican, a liberal Republican, and was willing to take on Presidents Reagan and Bush, and became a true leader in the bipartisan efforts that strengthened all the civil rights laws and defeated Bork,” said Ralph G. Neas, a longtime civil rights and health-care advocate.

“Then you had a line of demarcation,” Neas said, beginning with Thomas’s Supreme Court nomination and continuing with the Republican majorities in the House and the Senate after the 1994 midterm elections. “Arlen Specter became an especially cautious politician,” Neas said....

After Sen. Specter warned President George W. Bush not to nominate judges who would overturn Roe v. Wade — the 1973 Supreme Court case that essentially legalized abortion rights — conservative Republicans protested his appointment to the Judiciary Committee. Sen. Specter later said he would not use a “litmus test” to deny confirmation to abortion opponents.

He presided over the confirmations of Supreme Court Justices John G. Roberts Jr. and Samuel A. Alito Jr. and was a key force behind passage of some of the Bush administration’s controversial anti-terrorism laws, including the Patriot Act. But as controversy erupted over the government’s handling of detainees at Guantanamo Bay, Cuba, Sen. Specter became a leading proponent of habeas corpus rights for unlawful combatants.

I was just watching old clips from the Bork and the Thomas nomination hearings — because, after the VP debate, I wanted to review Joe Biden's performance.

Romney and Ryan are "two look-alike white guys with aggressively groomed hair."

Says Robin Givhan — whose stock in trade is observation but who failed to observe that Ryan had an unruly tuft of hair sticking up at the back top of his head.

Romney took the stage wearing a formal white shirt, blue tie and no jacket. Conveying the ease of a man wearing a cervical halo, Romney greeted the audience and after brief remarks, and a slip-of-the-tongue that had him referring to Ryan as the next “president” of the United States, the congressman bounded forth.

I had to look up "cervical halo." (Clue: It's not something religious— nothing about Mormons! — and it's not something uterine — nothing about the war on women.)

Ryan wore a dark suit—of the extra-roomy variety—and an open-collared white shirt. A rather large flag pin decorated his jacket lapel. He was dressed in the uniform that President Barack Obama popularized during the 2008 campaign. Obama wore the tieless black suit whenever he was looking to convey authority and gravitas in an informal situation. It was his go-to look for late night talk shows, for instance. Obama accessorized this look with cool, with nonchalance. Ryan prefers the aw-shucks understatement of an earnestly furrowed brow.

Aw-shucks? What's aw-shucks about Paul Ryan? "Shucks" — according to the Urban Dictionary — is a "backwoods" interjection. Obama has "authority and gravitas" wearing exactly the same thing as Ryan, because Obama brings "cool," but Ryan brings "aw shucks." Givhan is subtly approaching the line of racial stereotypes, isn't she? No, she's not. She's already labeled Romney and Ryan "white guys" (and she'll end the column by calling them "white guys" again). 

[A]s a pure visual, the image of the two men on stage in Norfolk, Virginia lacked dazzle or texture. It was a bit like seeing double.

These white guys all look alike. Oh? Am I being unfair? Givhan already called them "look-alike white guys." They don't look much alike to me. Ryan has strikingly blue eyes, a 5-o'clock shadow, a young man's cropped haircut, and an earnestly furrowed brow that reminds me of John Roberts. Romney has hazel eyes (not so striking, since I had to look that up),  a very clean-shaven face, and an older man's long-on-top, combed-straight-back hair.

The combination of their matching white shirts and black trousers—plus one jacket and one tie—meant that any hint of personal style was lost in a mish-mash of menswear remnants. 

Givhan wants to say they are over-controlled in their hair and their clothes, but the facts don't fit the preferred template. Neither man wore a business get-up, and each man stepped down from that level in his own way — Romney by leaving off the jacket and rolling up the sleeves and Ryan by not wearing a tie and opening the collar. It was a nice, casual coordination, but political preference grips Givhan and she won't admit it.

Givhan complains that the TV cameras didn't let us see Ryan's children:

The moment could have benefited from a loose shot of a tow-headed kid making a silly face or flashing a charming grin—an image that would connect something unscripted and personal to Ryan. 

And what would Givhan have said about those kids if only she could have seen them? Would she have enthused about their charm and silliness? Or would she have seen them as over-controlled, stiff conservatives? Recall how she treated the children (and wife) of now-Chief Justice John Roberts, back in 2005:

His wife and children stood before the cameras, groomed and glossy in pastel hues -- like a trio of Easter eggs, a handful of Jelly Bellies, three little Necco wafers. There was tow-headed Jack -- having freed himself from the controlling grip of his mother -- enjoying a moment in the spotlight dressed in a seersucker suit with short pants and saddle shoes. His sister, Josie, was half-hidden behind her mother's skirt. Her blond pageboy glistened. And she was wearing a yellow dress with a crisp white collar, lace-trimmed anklets and black patent-leather Mary Janes....

And through their clothes choices, the parents have created the kind of honeyed faultlessness that jams mailboxes every December when personalized Christmas cards arrive bringing greetings "to you and yours" from the Blake family or the Joneses. Everyone looks freshly scrubbed and adorable, just like they have stepped from a Currier & Ives landscape....

ADDED: It's telling that she used "tow-headed" in both columns.

6 highlights from Chris Wallace's great interview with Justice Scalia.

From the transcript of this morning's Fox News Sunday (and video).

1. Obamacare. Since Scalia is on the show to promote his new book, Wallace duly begins with a quote from the book: "A statute should be interpreted in a way that avoids placing its constitutionality in doubt." Now, doesn't that undercut Scalia's criticism of Chief Justice Roberts's decision in the Obamacare case? Roberts found that what was called a "penalty" (for failure to acquire health insurance) was actually a tax, and reading the statute that way avoided the constitutional problem. Scalia responded that his principle of interpretation only allows the judge "to find a meaning that the language will bear":

You don't interpret a penalty to be a pig. It can't be a pig. And what my dissent said in the... Affordable Care Act was simply that there is no way to regard this penalty as a tax. It simply doesn't bear that meaning. You cannot give -- in order to save the constitutionality, you cannot give the text a meaning it will not bear.

How does one know what the language will bear and will not bear? Yes, it's not a pig, but why isn't it a tax? There wasn't any pursuit of that line of inquiry, but later in the interview, Wallace came back to the case, that time to ask about the new reports that said Roberts changed his mind in the middle of working on the Obamacare opinion. Wallace introduced the topic by asking if Scalia himself had ever changed his mind after voting in conference. Scalia said:

I have not only done that, I have changed my mind after have been assigned to write the majority opinion. I've written the opinion the other way, it just wouldn't write.... There is... nothing wrong with that.

Wallace then asked "Did Chief Justice Roberts change his mind in the ObamaCare case?" Scalia says he doesn't know — "You'll have to ask him." And Wallace tries again, asking whether at some point Scalia had a majority. Again, Scalia refuses: "I don't talk about internal court proceedings." Wallace resorts to the cutesy: "Just this once?" And Scalia responds in a similarly childish form: "No, never ever. Never ever." But when Wallace accepts the pushback and just says "OK," Scalia opens up:

And, listen, those who do, you shouldn't believe what you read about internal court proceedings, because the reporter who reports that is either: A, lying, which can be done with impunity, because as you know, we don't respond. It's the tradition of common law judges to lay back and take it. You don't respond in the press. Or B, that reporter had the information from some who was [sic] breaking the oath of confidentiality, which means that's an unreliable person. So, either way, you should not -- you should not put any stock in reports about what was going on in the secrecy of the court.

Take that Jan Crawford!

2. Second Amendment. Wallace asked about the scope of the right protected by the Second Amendment (which the Supreme Court did not detail in Heller). Scalia says:

What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor.... My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we'll see what those limitations are as applied to modern weapons. 

It's clear, he says, as a matter of textualism, that the Second Amendment doesn't "apply to arms that cannot be hand-carried." But that doesn't mean it does apply to everything that can be hand-carried, for example, "handheld rocket launchers that can bring down airplanes." These are matters yet to be decided.

3. "How political is the court?" Scalia — unsurprisingly — says the Court isn't political at all, even though these days, the conservative/liberal split aligns with Republican appointees and Democratic appointees:

That... shows that they had been selected because of their judicial philosophy. The Republicans have been looking for, you know, originalist and textualist and restrained judges for 50 years. And the Democrats have been looking for the opposite, for people who believe in Roe versus Wade. Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with th[ese] philosophies?

4. Obama and the Court. Wallace invited Scalia to comment on Obama's criticizing the Supreme Court, first with video of 2010 State of the Union speech with Obama calling out the Justices who were sitting right in front of him. Scalia said that's why he doesn't attend. Second, Wallace showed video of Obama "jawboning" the Court while the Obamacare case was pending. Scalia called it "unusual" — "But as I say, I don't criticize the president publicly and he normally doesn't criticize me."

WALLACE: Did you feel any pressure as a result of that to vote a certain way?

SCALIA: Yes. What can he do to me? Or to any of us? We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.

The "yes" didn't mean "yes" other than yes, I get what you're asking. It was absolutely clear in the video that he didn't feel at all threatened.

WALLACE: Did you view that as a threat?

SCALIA: I didn't view it as a threat. I'm not even sure I heard it.

WALLACE: Well, you heard it now.

SCALIA: You brought it to my attention.

Ha ha. That was a little theater, acting out his attitude that the President is over there in his branch, doing whatever it is he does, and I'm here in mine, fully insulated.

5. Dissing Judge Posner. Wallace quoted Posner's saying that part of Scalia's dissenting opinion in the Arizona immigration case had "the air of a campaign speech." Scalia went comically snobby:

SCALIA: He is a court of the appeals judge, isn't he?

WALLACE: Yes.

SCALIA: He doesn't sit in judgment of my opinions as far as I'm concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That's what happens.

Wallace commented that Scalia knew how to "push people's buttons," and Scalia said "It's fun to push the buttons." Wallace pursued him — "Is it?... Why" — and Scalia basically says Posner started it: "When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative."

6. He's 76, but is he a fool?

WALLACE: You are 76 years old. Will you time your retirement so that a more conservative president can appoint a like-minded justice?

SCALIA: I don't know. I haven't decided when to retire.

WALLACE: But I mean, does it go through your mind, if I retire, I'd like to see, since you talk about Republicans appointing one kind of justice and Democrats another, that you would want somebody who would adhere to your view...?

SCALIA: No, of course, I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years, 26 years, sure. I mean, I shouldn't have to tell you that. Unless you think I'm a fool.

See how cagey Wallace was? Scalia didn't want to answer the question about timing his retirement to give the appointment to a conservative President, but then Wallace asked the question a different way, referring to the earlier discussion about why it seems — wrongly! — that the Court is political, and that caused Scalia to give the answer, which is of course he's going to time it. It amused me that he tacked on the ending "Unless you think I'm a fool," because Wallace actually did fool him into answering the question he didn't want to answer and because Wallace extracted that answer — which makes Scalia look political — by referring to the earlier discussion of why the Court looks political — but isn't!

Sandra Day O'Connor says attacks on John Roberts "demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch."

She was testifying at a Senate Judiciary Committee hearing on civics education, which doesn't sound as though it was about airing grievances about her old colleagues on the Supreme Court, but Democratic Senator Patrick Leahy — the chairman of the committee — used the occasion to express his concern "about some of the rhetoric about the chief justice. He’s been called everything from a traitor to having betrayed President George W. Bush."

But watch the video at the link. O'Connor is almost robotic as she steps carefully through a bland transition back to her prepared text — watch her look down at her notes — which seems to the usual civics lesson about the framers and the Constitution:

“It’s unfortunate. Because I think comments like that demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch, and I think the framers of our federal Constitution did a great job in understanding themselves that the judicial branch needed to be able to make independent decisions and the legitimacy — the lawfulness — of actions at the state and federal level...."

But the news media got their sound bite: Unfortunate!

She was also prompted give the other side a sound bite:

Once Leahy was done, Sen. Charles Grassley of Iowa, the committee's senior Republican, wondered whether the real threat to judicial independence came from Obama's remarks in early April, after the court heard arguments in the health care case but nearly three months before it was decided.

"If there's a pending decision at the Supreme Court and the president was to express his views along those lines it would be surprising," O'Connor said. "I guess it could happen, but it's not what we expect and it's not ideal."

Not ideal! Take that!

Grassley also wanted to know what O'Connor thought about Obama's criticism during his 2010 State of the Union speech, with several justices in attendance, of the court's 5-4 decision in the Citizens United case that freed corporations and labor unions of most limits on political spending.

"I don't know if it threatens judicial independence. It's just not what a citizen expects to hear," she said. "It's unusual. It's not how that time is usually spent by presidents."

It's unusual... not how that time is usually spent....

I'm guessing Justice O'Connor thinks it's unfortunate that her time, when called upon to testify about civics education, was used by politicians to extract politically useful statements from her, but that is how the time of politicians is usually spent, and it is exactly what a citizen expects to hear.

Ironically, that's a civics lesson.

Harvard lawprof Laurence Tribe predicted the way the Supreme Court would resolve the Obamacare case.

Long before the case was decided, he clearly and repeatedly stated the taxing power argument that Chief Justice Roberts ultimately adopted:



That's a lengthy video, but it's well worth watching. It has an amusing segment with Rush Limbaugh emphatically stating that nobody predicted what Roberts would say. Maybe "predicted" is the wrong word. Maybe what Tribe did was influence Roberts (his former student).

"I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you..."

"... they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, ‘What am I doing with this crowd of lunatics?’ Right? Maybe you have to re-examine your position."

Said Judge Richard Posner.

(Via AlphaLiberal.)

ADDED: Posner is admitting that there is a psychodynamic among judges that affects how judges decide cases.

IN THE COMMENTS: YoungHegelian said:

Because, when you're a grown man at the top of your game, like Chief Justice, and you screw up big time, and your friends of long standing tell you "John, you screwed up big time," what you do is go find another bunch of friends who'll kiss your ass every time you screw up big time.

What if the other bunch is the cool kids?

AND: Remember when Laurence Tribe advised Barack Obama about how Elena Kagan might have some "purchase on Tony Kennedy's mind." (I said: "I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain." But there were always other mountains to climb.)

What happens if states turn down the Medicaid expansion money and decline to set up the health-insurance exchanges.

Michael D. Tanner explains the surprisingly extreme consequences.

[I]f a state doesn't expand its Medicaid program, most of those who would've been eligible for Medicaid will now become eligible for subsidies through ObamaCare's health-insurance exchanges. And those subsidies are paid in full by the feds.

Thus, New York, for example, would shift most of that $52 billion in new costs back to the federal government.

Of course, if states do shift those costs back to the feds, that will cause the federal cost of ObamaCare to skyrocket. If every state were to refuse to expand its Medicaid program, the feds would save roughly $130 billion in their share of Medicaid costs in 2014, but would have to pay $230 billion more in new exchange-based subsidies — for a net added cost of $100 billion. And that's just for the first year...

ObamaCare gives the feds the authority to step in, setting up and operating an exchange in any state that doesn't set up its own... [But f]ederal subsidies are available only through exchanges that the states set up. The feds can't offer subsidies through a federally run exchange.

Thus, if states neither expanded Medicaid nor set up exchanges, that would effectively block most of ObamaCare's new entitlement spending.

Given the potential for chaos in the Obamacare scheme if the states decline to participate, it's surprising that Justices Breyer and Kagan went along with the Chief Justice's opinion on the spending power.  The original legislation had the states locked in, because they'd lose all their Medicaid funding if they didn't participate. That was held to be coercive, and thus not supportable by the spending power, which requires that states be given a choice whether to run federal programs and accept various related conditions. Under the Court's ruling, the states only lose the funding for the expansion of Medicaid, which makes it possible for them to say no, as many seem to be doing.

There's an elaborate set of moves in the future, and I wonder how far ahead the Chief Justice looked when he chose his position. Perhaps Obamacare is doomed by the seemingly modest, miminalist hit it took on the spending power issue. But wouldn't Breyer and Kagan have seen ahead too? Why did they join him? I'm not ready to give him genius points for skillful playing of the long game.

Mitt Romney says "The Supreme Court has the final word. And their final word is that Obamacare is a tax."

Interviewed by Jan Crawford, Romney takes the clear, straightforward separation-of-powers position. The judiciary has the work of saying what the law is:

So it is a tax and it's constitutional. That's -- that's the final word. That's what it is. Now, I agreed with the dissent. I would have taken a different course. But the dissent wasn't the majority. The majority has ruled. And their rule is final.

Crawford moves in with the challenge Romney will always have to deal with: You did the same thing in Massachusetts. It this was a tax, then that was a tax. And we expect him always to answer in about the same way: There's a difference between doing something at the federal level and doing it at the state level.

As a lawprof, I see the consistent separation-of-powers theme.
The Constitution gives the judiciary the power to interpret the law, and it gives Congress the power to make the law, but under our system of federalism, Congress's power to make law is limited to a set of enumerated powers. The Supreme Court case was about whether Congress could regulate and require people to buy health insurance, and the answer on that question was that Congress does not have that power. The only reason the Supreme Court appeared to uphold the mandate was that on closer inspection, the Chief Justice decided that there wasn't a requirement to buy insurance at all, despite what the people believed was happening when the law was passed — when the law squeaked by in Congress.

The Chief Justice, the deciding vote, looked and decided that there was no mandate at all, just an option that people were given: Either buy insurance, from a private insurance company, or pay an amount of money to the federal government, and the Chief Justice said that second option, if seen as a tax, could be upheld under the enumerated power that is the taxing power. That may seem awfully strange to people, but in Massachusetts, there was no need to think about it in a strange way like that, because the state's powers are different. The state legislature is not restricted to the Constitution's enumerated powers. The state legislature has the powers of government that are left after the Congress has gotten its set of enumerated powers. That is our system of federalism, and the more expansively the Supreme Court reads those enumerated powers, the less is left for the states, and that is an important rearrangement of constitutional powers.

But that's lawprof talk. Too long. Romney needs to make the federalism point in a convincing, snappy way, and he's got to do it with the interviewer coming at him with the you-raised-taxes challenge — as if the main thing people want to hear about is whether taxes will be raised. And in legal terms, that's just weird, because a penalty — the term used by Congress — is a harsher matter than a tax. The Chief Justice said the "penalty" could be seen as a tax because it was so little that it didn't amount to compulsion. In this view, Congress refrained from forcing people to buy insurance, and because of that, the law survived. But the word "tax" is a hot word in presidential politics, so what was milder ends up seeming more severe.

That's a lot to process in a media interview. You can't say all that. I think I put that in a clear and conversational way, but I know that in political discourse it would sound ridiculously blabby and didactic. And it is Romney's greatest point of vulnerability — his work on health care in Massachusetts. It's especially important that he avoid giving us the feeling that he's dancing around the truth and over-explaining. He says:

Actually, the -- chief justice, in his opinion, made it very clear that, at the state level -- states have the power to put in place mandates. They don't need to require them to be called taxes in order for them to be constitutional. And -- and as a result, Massachusetts' mandate was a mandate, was a penalty, was described that way by the legislature and by me. And so it stays as it was.

Pretty good! He's denying that he raised taxes. The same thing, at the state level, isn't a tax, because not only was it not called a tax, but it didn't need to be relabeled a tax — "it stays as it was" — in order to make it constitutional. Relabeling was a special trick needed to conjure up federal power. We didn't need that trick to make it constitutional in Massachusetts.

That's enough to move Crawford on. She says: "Whatever it's called... it means that Americans, if they don't have insurance, are going to pay something, whatever they call it." What I'd jump on there is her use of the word "Americans." Romney was never involved in telling Americans what to do, only Massachusetters. Romney says:

You know, I made it very clear throughout my campaign and actually, while I was governor of Massachusetts, that the issue of the uninsured should be dealt with at the state level. And each state can create their own solutions to meet the needs of their people.

Think of the restraint it takes to stop there. Implied in that is: Hello? It was Massachusetts, the most liberal state in the country. What was I supposed to do? I worked with these people to give them something that suited their preferences, as liberals. This is the genius of federalism, that policies are designed at the state level. Massachusetts got a Massachusetts-style policy, and that's not going to be what other states get. It's not one-size-fits-all when you take the federalism — leave-it-to-the-states — approach, which is what I'm talking about. The federal law that the Supreme Court upheld foisted the most liberal state's preference on all of the states. That's what I object to.

Now, that's what I'd be tempted to say, but you can't say all that. It's blabby and defensive, and it's technical and weird. But he essentially said that, didn't he? He can leave it to others to expand into the Massachusetts-specific material.

Crawford goes on to challenge him about he statement — which appears on his website — that he would choose Supreme Court Justices who are like John Roberts. Does he maybe want to change that? Romney says:

Well, I certainly wouldn't nominate someone who -- I knew -- was gonna come out with a decision I violently disagreed with or vehemently, rather, disagreed with. 

(He disapproved of his use of the word "violently.")

And he reached a conclusion I think that was -- not accurate and not -- an appropriate conclusion. But -- that being said, he's a very bright person. And I -- I'd look for -- individuals that have intelligence and believe in following the constitution.

A very bland answer. (Except for the violence.)

Crawford brings up her own journalistic scoop — that Roberts supposedly "switched his vote." "He was initially with the conservatives to strike down the heart of the law, the individual mandate, and then changed his mind to join the liberals to uphold it?" Romney says:

Well, it -- it gives the impression that the decision was made not based upon constitutional -- foundation but instead -- political consideration about the -- relationship between the branches of government. But we won't really know the answers to those things until the justice himself speaks out -- maybe some time in history.

See what he did? He got in there and took his shot: Roberts yielded to political pressure. But the punch is pulled. We get an "impression," but we don't "really know," and blah blah blah... maybe someday... history....

He made the harsh criticism and left us feeling that he wasn't harsh, that he was moderate and thoughtful and disinclined to get ugly. And yet, he was ugly enough to hurt.

Liberals worry that Chief Justice John Roberts has built up political capital...

... which he will spend next term in what will be conservative decisions on things like affirmative action, voting rights, and same-sex marriage.

A second look at Jan Crawford's "Roberts switched views to uphold health care law."

Reading this article last night, I guessed that one of Crawford's sources was Justice Kennedy and that Chief Justice Roberts shifted his position in the process of writing about the question of severability (that is, whether to strike down the whole law if the individual mandate is unconstitutional). I reread the article today, and I want to highlight and stress 4 points.

1. Crawford never says that Roberts committed to a decision on severability. At the conference after the oral arguments, she says, Roberts voted with the conservative group that the commerce power did not support the mandate, but Roberts was "less clear" on severability. He assigned himself the opinion, and he followed through on the commerce power.

2. One of the sources describes Roberts as becoming "wobbly" by May and failing to adequately explain what he was doing. Once it emerged that Roberts would rely on the taxing power, there was "fair amount of give-and-take with Kennedy and other justices," that one justice described as "arm-twisting." (At least they weren't neck-wringing! (A Wisconsin joke.))

3. I see vanity as a motivation to talk to Crawford:

The two sources say suggestions that parts of the dissent were originally Roberts' actual majority decision for the court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn't mention Roberts' majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

They didn't like Roberts getting credit for their work, and they didn't like getting called sloppy. It was a strange situation: Court observers were airing suspicions that Roberts had turned, which was (apparently, at least partly) true, but they were using evidence that was (apparently) not true, and that wounded the pride of the dissenting Justices who wanted it to be known that they really did write their own opinion and that they hadn't made careless mistakes. They want respect, it seems. And they don't like Roberts getting all the credit... or perhaps any of the credit.

4. The source(s) want it known that Kennedy, more generally, deserves a great deal of credit for his work over the years on the Court. Here, again, I see vanity, as Crawford — seeming like a mouthpiece — says:

Kennedy has long frustrated conservatives, because he occasionally joins with liberals to provide the key swing vote in cases involving social issues. They openly mock his writing style as grandiose and his jurisprudence as squishy - in other words, changeable and too moderate.

That's not entirely fair to Kennedy....

Kennedy mocked as squishy? But Roberts went wobbly! I'm seeing a pattern to these protestations. I'm seeing a psychodrama here, with Kennedy feeling rivalry toward the Chief, who structured the decision in a way that would tend to draw admiration from many of the media folk who shower affection on Kennedy when he does the things they like. Kennedy — or somebody — seems to have wanted it to be known that it's Roberts' judicial demeanor and craftsmanship that deserves mockery.